LOUISIANA LEGAL SERVICES AND PRO BONO DESK MANUAL 2013

IMMIGRATION
status including helpfulness and harm. Victims, who are culpable themselves
for the qualifying criminal activity, are excluded from being considered a victim.
8 C.F.R. § 214.14(a)(14)(iii).
The qualifying crimes are listed in the statute and include one or more
of the following crimes or any similar activity that violates a Federal, State,
or local criminal law: abduction, abusive sexual contact, blackmail, domestic
violence, extortion, false imprisonment, felonious assault, female genital
mutilation, hostage-taking, incest, involuntary servitude, kidnapping,
manslaughter, murder, obstruction of justice, peonage, perjury, prostitution,
rape, sexual assault, sexual exploitation, slave trade, torture, trafficking,
unlawful criminal restraint, witness tampering, a related crime, and an
attempt, conspiracy or solicitation to commit any of the above crimes. 8 C.F.R.
§ 214.14(a)(9). If the crime is witness tampering, obstruction of justice or
perjury, then there is an additional requirement, that the perpetrator committed
the offense 1) to avoid or frustrate efforts investigate, arrest, or to
prosecute or 2) to further his or her abuse or exploitation or undue control
through the legal system. 8 C.F.R. § 214.14(a)(14)(ii). Note that these “enumerated
crimes” are general categories and that the statute allows consideration
of “any similar activity” in determining eligibility for U nonimmigrant
status. Thus, one may be able to describe a victim of “stalking” (a crime not
enumerated in the U statute) as a victim of domestic violence. Additional
documentation proving the “similarity” of a non-enumerated crime to an enumerated
crime should be submitted.
The harm suffered by the victim can be physical or mental, but must be
substantial. Factors to consider if the harm is substantial include 1) nature
of the injury, 2) severity of the perpetrator’s conduct, 3) severity of the harm
suffered, 4) duration of infliction of harm and 5) permanent or serious harm
to appearance, health, physical or mental soundness. 8 C.F.R. § 214.14(b)(1).
CIS will consider the totality of circumstances to determine substantial
abuse. Therefore if there are pre-existing, underlying factors that would
cause a victim to suffer more greatly than might be expected, those factors
and that aggravated harm should be considered. CIS writes in the instructions
to the application that if the crime “caused the aggravation of a preexisting
physical or mental injury” that will be considered, and if the crime
involved a series of acts or occurred repeatedly over a period of time that is
also relevant to the “totality” evaluation. For example, perhaps the victim
has long suffered severe domestic violence and rape at the hands of the perpetrator,
but the U crime that was certified was just for a simple battery that
caused minimal physical harm. As this battery was a part of a long pattern
of abuse, the victim likely suffered substantial mental harm, even if the physical
harm was minor, due to the pre-existing harm. In order to determine if
someone suffered substantial harm, it is often advisable to involve a mental
health professional to assess the victim.
Possesses information concerning that criminal activity and Helpfulness
The statute does not specify the extent of information the victim must possess.
So as long as the victim has some information about the crime that
should be sufficient.
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