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In re Nunez-Ramirez

United States District Court, Fifth Circuit

December 3, 2013

IN RE CERTIFICATION FORM FOR U VISA FOR MOVANT SAIDA LIZETH NUNEZ-RAMIREZ

REPORT AND RECOMMENDATION

PETER E. ORMSBY, Magistrate Judge.

Movant Saida Lizeth Nunez-Ramirez ("Movant" or "Ms. Nunez"), represented by immigration counsel, has submitted a letter requesting that the District Court provide a certification in support of her U visa application pursuant to 8 U.S.C. § 1101(a)(15)(U). Specifically, Movant requests that the Court certify that she was "helpful" in the prosecution of criminal activity in United States v. Julio Enrique Santos, 7:09-cr-1358, a case that was closed about three years before Movant submitted her request for a U visa certification. Movant was one of three material witnesses held in custody at the Government's request in connection with criminal charges brought against Defendant Julio Enrique Santos for harboring undocumented aliens (including Movant and numerous others). ( See Docket Nos. 1, 3, 12.)[1] Movant notes that the certification is only one of the requirements for a U visa and that the Court would not be making a final immigration determination. The District Court has referred this matter to the undersigned.

After carefully considering Movant's certification request in light of the record in United States v. Santos, 7:09-cr-1358, the undersigned concludes that the District Court should decline to exercise its discretion to provide the requested U visa certification. As discussed further below, it is far from clear that Movant satisfies two key certification requirements: 1) that she was the victim of qualified criminal activity; and 2) that she was helpful in the investigation or prosecution of qualified criminal activity. Because the record is insufficient for the Court to render a U visa certification, the undersigned recommends that the District Court decline Movant's request without prejudice to her ability to seek such a certification from an appropriate investigating or prosecuting official.[2]

I. BACKGROUND[3]

On August 26, 2009, a federal alien smuggling task force received information from a concerned citizen that a residence in Palmview, Texas, was being used to house undocumented aliens. Federal agents and local police officers approached the residence a few days later and encountered Defendant Julio Enrique Santos and 24 other undocumented aliens, including Movant. The federal agents arrested Santos and filed a criminal complaint charging him with harboring illegal aliens. According to the sworn complaint, Santos was the caretaker of a stash house for aliens who had entered the United States illegally and were awaiting transportation to Houston, Texas. Although Santos denied any involvement in alien smuggling, he admitted that he was a member of the MS 13 gang. The task force officers found ledgers maintained by Santos. The ledgers bore the notation "MS 13" and listed the names of the 24 undocumented aliens found with Santos, as well as 114 other aliens who had previously been staged at the residence.

Along with the criminal complaint, the Government filed an affidavit naming three of the 24 aliens as material witnesses. Movant was one of the material witnesses. According to the Government's summary in the criminal complaint, all three witnesses identified Santos as the caretaker of the house who would bring them food and instruct them not to make noise.

Movant stated that she made arrangements with an alien smuggler to be transported to Houston, Texas, for a fee of $2, 400; she had paid $600 of the fee, with the remaining balance to be paid upon her arrival in Houston. ( See Docket No. 29, ¶ 14.) Movant illegally entered the United States with the aid of the smuggler, and she was taken to the residence where she was later found by federal task force officers. When Movant and the others arrived at the stash house, Defendant Santos took down their names. Movant "stated that SANTOS would constantly tell the group of undocumented aliens to call their families and make them send money for their smuggling fees." (Docket No. 1.) Movant said that Santos told them that if they ever got caught, they were not to tell immigration officials about him; otherwise, he would send his MS 13 gang friends after them.

Movant and the other two material witnesses made an initial appearance in court, and all three were appointed attorneys. Based on their lack of immigration status and the absence of appropriate conditions of release, all three material witnesses were held without bond. (Docket No. 8.) Movant's appointed attorney filed a motion requesting that her testimony be taken by deposition so that she could be released from custody. (Docket No. 11.) Before the material witnesses were deposed, Defendant Santos pleaded guilty pursuant to a plea agreement with the Government. The same day that Santos pleaded guilty, November 3, 2009, the Government moved for the release of the material witnesses, noting that their "continued presence is no longer requested." (Docket No. 19.) The Court immediately granted the motion, ordering that the Marshals release Movant and the other witnesses. (Docket No. 20.) The Marshals presumably released Movant to the custody of immigration authorities.[4]

After accepting Santos's guilty plea, the District Court directed the Probation Office to prepare a Presentence Report (PSR). The PSR reflects the recommendation that Santos's offense level be enhanced because he harbored over 100 undocumented aliens (including the 24 in Movant's group as well as prior groups who had previously come through the same stash house). The PSR did not recommend any sentencing enhancements based on Santos's treatment of the undocumented aliens.

On May 28, 2010, the District Court sentenced Santos to 25 months imprisonment, which was on the low end of the sentencing guidelines range as determined by the Court. On June 14, 2010, the Court signed the judgment in Santos's case. He did not appeal his conviction, which thus became final fourteen days later on June 28, 2010. See FED. R. APP. P. 4(b)(1)(A).

Almost three years later, on May 6, 2013, Movant's immigration counsel submitted the pending request that the District Court sign a form "I-918 Supplement B, U Nonimmigrant Status Certification."

II. ANALYSIS

"Congress created the U nonimmigrant classification or U Visa in 2000 for victims of serious crimes and some of their family members." Torres-Tristan v. Holder, 656 F.3d 653, 656 (7th Cir. 2011) (citing Pub. L. No. 106-386, 114 Stat. 1464 (2000); Fonseca-Sanchez v. Gonzales, 484 F.3d 439, 442 n.4 (7th Cir. 2007)). The U visa was created as part of the Battered Immigrant Women Protection Act of 2000 (BIWPA). See Pub. L. No. 106-386, 114 Stat. 1464 (2000). In regulations implementing the U visa provision, the Department of Homeland Security (DHS) explained:

The purpose of the U nonimmigrant classification is to strengthen the ability of law enforcement agencies to investigate and prosecute such crimes as domestic violence, sexual assault, and trafficking in persons, while offering protection to alien crime victims in keeping with the humanitarian interests of the United States.
....
Alien victims may not have legal status and, therefore may be reluctant to help in the investigation or prosecution of criminal activity for fear of removal from the United States. In passing this legislation, Congress intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes while offering protection to victims of such crimes. See BIWPA, sec. 1513(a)(2)(A). Congress also sought to encourage law enforcement officials to better serve immigrant crime victims. Id.

Eligibility for "U" Nonimmigrant Status (Interim Rule), 72 Fed. Reg. 53014-15 (Sept. 17, 2007).

To qualify for U visa status, the Secretary of DHS must determine that an alien meets several statutory requirements:

(I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii)[8 U.S.C.A. § 1101(a)(15)(U)(iii)];
(II) the alien... possesses information concerning criminal activity described in clause (iii);
(III) the alien... has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities ...

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