Originally published by USA Today
EL PASO, Texas – When the bullets rained down on country music fans in Las Vegas on the night of the nation’s deadliest mass shooting, dozens of undocumented women –hired to clean the festival’s portable toilets – were among those who fled or hid from the gunfire.
The women – some physically injured, others psychologically traumatized – are now seeking a special U visa designed to protect immigrant victims of crime in the U.S. who agree to cooperate with law enforcement, said Gabrielle Jones, lead immigration attorney for Legal Aid Center of Southern Nevada.
The U visa allows victims to live and work legally in the U.S. for four years, then opens the door for petitioners to apply for a green card.
El Paso immigration attorneys and law enforcement say some undocumented survivors of the Aug. 3 Walmart massacre could also qualify, giving them crucial protection as local and federal prosecutors pursue capital murder charges against the suspect accused of fatally shooting 22 people and wounding 25 others in a racist rampage.
El Pasoans show up at a memorial Monday, Aug. 5, 2019, to pay their respects to those who lost their lives in an attack that killed 22 people and wounded 25 others. (Photo: Mark Lambie/El Paso Times)
“The U visa was created for people like them who are living in the shadows,” said Linda Corchado, an El Paso immigration attorney with nonprofit law office Las Americas.
“It’s meant to encourage them to come out of the shadows and provide any sort of information that could be useful to law enforcement about the crime that just happened. Their voice matters, and they should feel like their voice matters.”
But attorneys caution that the U visa also comes with conditions and some risk, both in the time it can take to secure the visa and in the potential exposure to the nation's deportation machine.
Walmart draws border shoppers of all stripes & immigration status
At the El Paso Walmart near Cielo Vista Mall, located minutes from international border crossings in a city with a long tradition of welcoming immigrants, “we had any kind of status that you can think of,” said Fernando Garcia, director of the Border Network for Human Rights.
There were young immigrants working in the store that Saturday morning, so-called “Dreamers” with temporary protection under the Deferred Action for Childhood Arrivals program, he said. Many shoppers had border crossing cards known as “laser visas.” Others were U.S. citizens or legal residents.
“It is difficult to quantify at this point,” he said.
The Mexican Consulate in El Paso could not immediately confirm how many survivors of the Walmart shooting, or close family members of those who were killed, may have been living in the U.S. without permission. But Las Americas attorneys said at least 150 people have reached out to the consulate for assistance related to the shooting.
In the Vegas shooting, some of the undocumented workers worried about reporting to law enforcement and risking deportation.
The cleaning staff were mostly from Mexico, working the last of their 10-hour shifts for $11 an hour. It was 10:05 p.m. when a shooter began his sniper-style attack from the 32nd floor of the nearby Mandalay Bay Hotel and Casino, killing 58 and wounding 500 before he committed suicide.
“Some people really wanted to give the information and weren’t thinking about the immigration aspect,” Jones said. “That is where we started.”
An aerial photograph of the memorial near the Walmart near Cielo Vista Mall, where a shooting that killed 22 and wounded 25 others happened Saturday, Aug. 3. Some vehicles still remain at the crime scene. (Photo: Mark Lambie/El Paso Times)
Who qualifies for a U visa?
The U visa is designed to protect direct victims of crimes committed in the U.S., as well as their spouse or minor children; if the victim is a child, the parents can apply.
The law is less exact about “indirect victims” – those witnesses or bystanders who may not have experienced a physical injury but who suffer “an unusually direct injury as a result of a qualifying crime,” according to the regulation. The law provides an example of a pregnant woman who miscarries in the wake of a traumatic crime.
“I think a conservative approach is essential,” said Leslye Orloff, director of the National Immigrant Women's Advocacy Project at American University and an architect of the law that created the visa in 2000.
In Vegas, Legal Aid attorneys “limited it to people where they had facts,” she said. “If somebody applies and is denied, they can get referred for removal, potentially. You need a strong case.”
There is a massive backlog of U visa applications currently pending before U.S. Citizenship and Immigration Services – more than 141,000 as of March. The wait time for a decision has stretched beyond four years, as a 10,000-visa annual cap remains in force.
What’s more, under the Trump administration, attorneys say United States Citizenship and Immigration Services has the discretion to refer applicants for deportation if their petition is denied. With the USCIS backlog as long as it is, they are still waiting for an answer.
Jones said Legal Aid submitted 60 applications for U visas on behalf of the festival cleaning staff and other men and women who were working that night without legal documents.
“We strongly believe that every U visa case we filed had merit,” Jones said.
Attorneys in El Paso say it's early still, and they haven't filed any U visa petitions yet on behalf of victims of the Walmart shooting.
El Pasoans continue to mourn and visit the makeshift memorial outside the Walmart near Cielo Vista Mall. (Photo: Mark Lambie / El Paso Times)
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Who is a 'victim' – and who isn't
Whether or not someone is considered a "victim" is up to law enforcement, and the law gives departments discretion to handle victim certifications in different ways. At the end of the day, USCIS makes the determination about whether to grant the visa or not.
El Paso police only considers those who suffer a physical injury in a crime as victims, while El Paso County prosecutors will consider physical and psychological trauma and evaluates each case individually, according to spokespeople for each agency.
Citing the Texas penal code, El Paso police Sgt. Enrique Carrillo said a physical injury stemming from a crime is required to be considered a victim by his department.
“If they suffered an injury as a result of this person’s actions, if they were shot during this event, then they would be a victim,” he said. “If they witnessed the event, then they are witness. It’s real simple.”
In the wake of the 2018 Parkland, Florida, massacre of 14 students and three educators at Marjorie Stoneman Douglas High School, the Broward County Sheriff’s Office didn’t apply the state’s more stringent criteria defining victims to U visa applicants.
“For the U visa applications that came to us, we did not necessarily apply our state victim criteria to them,” said Capt. Ed Sileo. “We did it much more broadly. Anyone who was associated with the (Stoneman Douglas) shooting, we certified their I-918,” as the U visa certifying document is known.
Roberto Ramos, head of the El Paso County District Attorney’s Office foreign prosecution unit, said his agency requires that victims show they have “suffered significant physical or mental abuse from a qualifying crime."
“In this case, murder is a qualifying crime,” Ramos said. “Key to us is that they cooperate and/or assist in the investigation or prosecution of the crime.”
Garcia of the Border Network for Human Rights said the alleged racist intent of the Walmart shooter — exhibited in an anti-immigrant, anti-Hispanic manifesto online — made everyone inside the store with Hispanic heritage a potential victim.
"I believe every Mexicano and Hispanic that was inside that Walmart was the target of the attack," he said. "There was an attempted murder situation."