Opinion
Z-19755/16
12-23-2016
In the Matter of a Miscellaneous Application filed by Patricia C., for U Nonimmigrant Status Certification pursuant to 8 USCA §1101 (a) (15) (U).
For Petitioner: Luiggi A. Perdomo, of the Texas Bar, Dallas, TX
For Petitioner: Luiggi A. Perdomo, of the Texas Bar, Dallas, TX
I
Patricia C., who was the petitioner in a family offense proceeding filed in the Family Court, Queens County, has submitted two identical ex parte applications to this Court requesting that the Court execute a "Form I-918, Supplement B, U Nonimmigrant Status Certification", certifying that she is an alien who is or has been the victim of certain qualifying criminal activity, specifically "domestic violence".
The facts of the proceedings conducted before the Family Court are not controverted. On July 14, 2016 Ms. C. commenced a family offense proceeding against Jose G. pursuant to Family Court Act §821 (1). The petition alleged that Ms. C. then resided in Rockaway Park, New York, that Mr. G.'s residence is "unknown", and that the parties are married to each other. In addition, the petition alleged that two minor children of the petitioner reside with her, although these children are "not related" to the respondent. With respect to the alleged conduct of the respondent which occasioned the filing of the petition, it was alleged:
July 7, 2015 . . . he threatens to hurt me, to come and beat me up. He calls me sometimes, but when I tell him I'm going to call the police, he stops. The last thing I heard of him is that he is using cocaine. He sometimes calls, he says that he is nearby and threatens that he is going to come home.
I forgot the date. He shook me and abused me verbally. He stole money from me and was angry when I did not give him money to buy cigarettes. He used to threaten to hit me and shook me. He only went away when I called the police.
[In] 2014 . . . he shook me and pushed me. He stole from me. He verbally abused me. He threatened that he was going to hit me and threatened to kill himself.
I have filed a criminal complaint concerning these incidents. Petitioner possesses [a] Domestic Incident Report filed with the 100th Precinct (italics added).
Ms. C. appeared before a Court Attorney-Referee of this Court on July 14, 2015 (see Fam. Ct. Act §153-c), and a temporary order of protection was issued in her favor and against her husband, directing that he stay away from petitioner and her children, that he commit no family offenses against them, and that he not communicate with petitioner or her two children (Fam. Ct. Act §828).
Both parties appeared before Judge Dennis Lebwohl on September 9, 2015 and jurisdiction was acquired over respondent. Judge Lebwohl assigned counsel for both parties, and the temporary order of protection was extended until the next court date of December 14, 2015. On December 14, 2015, counsel for the parties apparently advised Judge Lebwohl that the case required a fact-finding hearing, and Judge Lebwohl adjourned the case for a hearing before this Court for February 8, 2016. The parties and counsel appeared before this Court on February 8, 2016 and the Court was advised that respondent was then residing in New Jersey, there was no action for divorce pending, and there had been no further family offenses committed since the proceeding had been commenced by petitioner. The Court proceeded to set the case down for a fact-finding hearing for June 9, 2016 (Fam. Ct. Act §832), and the temporary order of protection was extended until that date.
Judge Lebwohl retired from office effective December 31, 2015 (see NY Const, art 6, §25 [b]).
On June 9, 2016 the respondent failed to appear, and the Court proceeded to conduct the fact-finding hearing upon his default ("inquest"). The Court credited petitioner's testimony that her husband had made threats to her by telephone, and that he had grabbed and shook her on more than one occasion. Based upon petitioner's testimony, and having drawn a negative inference against respondent based upon his failure to appear and testify (Matter of Commissioner of Social Services [Patricia A.] v. Philip De G., 59 NY2d 137, 141 [1983]; Matter of Jackson F., 121 AD3d 1114, 1115 [2014], app dismissed, lv denied 24 NY3d 1206 [2015]; Matter of Laila S.W., ___ AD3d ___, 40 NYS3d 187, 189 [2016]), this Court found that the respondent had committed the family offenses of Aggravated Harassment in the Second Degree (Penal Law §240.30 [1]) and Harassment in the Second Degree (Penal Law §240.36 [1]).
At the conclusion of the proceedings, the Court proceeded to an immediate disposition (Fam. Ct. Act §835 [a]), and a final order of protection of two years' duration that directed that respondent stay away from his wife and that he commit no family offenses against her was issued in petitioner's favor (Fam. Ct. Act §§841 [d]; 842; 22 NYCRR §205.74 [c]).
II
Ms. C. has submitted a request that the Court issue her a "U nonimmigrant status certification" in its capacity as a "law enforcement officer" pursuant to 8 USC §1184 (p) (1) and 8 CFR §214.14 [a] [3] [ii]), as she wishes to utilize this certification in connection with an application for a "U-Visa" under 8 USC §1101 (a) (15) (U) as an individual who is a victim of qualifying criminal activity.
A "U-Visa" is "an immigration benefit available to certain victims of crime" (Catholic Charities CYO v. Napolitano, 368 Fed Appx 750, 752 [9th Cir 2010]). "A U-Visa is a type of visa that can be granted to victims of certain listed crimes who later help United States law enforcement officials investigate or prosecute those crimes" (Linares v. Sheriff's Office of Broward County, 588 Fed Appx 363 [5th Cir 2014]; see also Ordonez Orosco v. Napolitano, 598 F3d 222, 224 [5th Cir 2010], cert denied 562 US 863 [2010]; Torres-Tristan v. Holder, 656 F3d 653, 656 [7th Cir 2011]; United States v. Cisneros-Rodriguez, 813 F3d 748, 753 [9th Cir 2015]; Fonseca-Sanchez v. Gonzales, 484 F3d 439, 441 [7th Cir 2007]; Shukhrat v. Napolitano, 2013 WL 6210264 at *1 [ED Penn 2013], aff'd 634 Fed Appx 880 [3rd Cir 2015]; Mondragon v. United States, 839 F Supp 2d 827, 828 [WD NC 2012]).
The "United States Citizenship and Immigration Services has sole jurisdiction over U-Visa applications. 8 C.F.R. §214.14(c)(1). In order to apply for a U-Visa, an applicant must first acquire a certification from a Federal, State, or local law enforcement official, prosecutor, judge, or other Federal, State or local authority investigating criminal activity. 8 U.S.C. §1184 (p)(1)" (Romero-Hernandez v. District of Columbia, 141 F Supp 3d 29, 32 [D DC 2015]).
In accordance with the statute, this certification must confirm that the applicant for a U-Visa " 'has been helpful, is being helpful, or is likely to be helpful' in the investigation or prosecution of criminal activity described in [8 USC] section 1101 (a)(15)(U)(iii) of this title" (8 USC §1184 [p] [1]; see Ordonez Orosco, 598 F3d at 224; see also Bejarano v. Department of Homeland Security, 300 Fed Appx 651, 652-653 [11th Cir 2008]; Catholic Charities CYO, 622 F Supp 2d at 872; Mondragon, 839 F Supp 2d at 828; Aguilar v. Yarra, 2015 WL 1058098 at *5 [Cal Ct App 2015]).
While a state or federal judge is designated as an official who may issue a "law enforcement certification" (8 USC §1184 [p] [1]; Villegas v. Metropolitan Government of Nashville, 907 F Supp 2d 907, 910 [MD Tenn 2012]), "[t]he pertinent federal regulation requires that the person signing the certification have 'responsibility for the detection, investigation, prosecution, conviction, or sentencing of qualifying criminal activity' (8 C.F.R. §214.14 [c][2][i])" (Linares, 588 Fed Appx at 363; see also Romero-Hernandez, 141 F Supp 3d at 33-34; Baiju v. United States Department of Labor, 2014 WL 349295 at *19-20 [ED NY 2014], app dismissed 14-394 [2d Cir, Apr. 25, 2014]).
A decision upon a request to issue a law enforcement certification under 8 USC §1184 (p) (1) is discretionary and not subject to review (Ordonez Orosco, 598 F3d at 226; Linares, 588 Fed Appx at 363; Bejarano, 300 Fed Appx at 653; Trevino v. Benton County, Ark., 578 Fed Appx 626, 627 [8th Cir 2014]; United States v. Biao, 2011 WL 607087 [SD Cal 2011]; Romero- Hernandez, 141 F Supp 3d at 32-33).
Under the circumstances here and for the reasons which follow, this Court declines to issue the requested law enforcement certification which must be signed "under the penalty of perjury" (see Department of Homeland Security, U.S. Citizenship and Immigration Service, Form I-918 Supplement B, U Nonimmigrant Status Certification, Part 6 [Certification]).
1. The Family Court is not a criminal court and it exercises no criminal jurisdiction (People v. Williams, 24 NY2d 274 [1969]; Criminal Procedure Law §§1.20 [19]; 10.10 [1] [enumerating the "criminal courts"]).
2. The family offense proceeding which was commenced by Patricia C. is a civil proceeding (Fam. Ct. Act §§812 [2] [b], [c]; 813 [3]; People v. Wood, 95 NY2d 509, 512-513 [2000]; Matter of Richardson v. Richardson, 80 AD3d 32, 36-37 [2010]; Matter of Molloy v. Molloy, 137 AD3d 47, 50-51 [2016]).
"A victim of domestic violence may commence a proceeding in either or both Family and Criminal Court and each court has the authority to issue temporary or final orders of protection" (Molloy, 137 AD3d at 50 [citation and punctuation omitted]), but the proceedings in each court are separate and distinct. A family offense proceeding heard by Family Court "is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection" (Fam. Ct. Act §812 [2] [b]), while "a proceeding in the criminal courts is for the purpose of prosecution of the offender and can result in a criminal conviction of the offender" (Fam. Ct. Act §812 [2] [c]). Moreover, the victim's election to proceed in the Family Court does not divest a criminal court from entertaining a prosecution commenced by a District Attorney (Fam. Ct. Act §812 [2] [g]).
3. While the family offense acts enumerated in Family Court Act §812 (1) may also constitute crimes under the Penal Law (see Matter of Steinhilper v. Decker, 35 AD3d 1101, 1102 [2006]; Matter of Janet GG. v. Robert GG., 88 AD3d 1204, 1205 [2011], lv denied 18 NY3d 803 [2012]; Matter of Sonia S. v. Pedro Antonio S., 139 AD3d 546 [2016]), in the context of a proceeding under article 8 of the Family Court Act, a finding that a family offense has been committed does not constitute a criminal conviction of the perpetrator (Criminal Procedure Law §1.20 [13]). In addition, given the absence of criminal jurisdiction, the Family Court does not impose a sentence at the conclusion of a family offense proceeding (Criminal Procedure Law §1.20 [14]; Matter of Alfeo v. Alfeo, 306 AD2d 471, 472 [2003]; Matter of Pearlman v. Pearlman, 78 AD3d 711, 713 [2010]).
4. While the pertinent federal regulation authorizes a judge who presided at an underlying criminal prosecution to issue the law enforcement certification, as the conviction and sentencing of the perpetrator "extend from the prosecution" (Romero-Hernandez, 141 F Supp 3d at 33 citing New Classification for Victims of Criminal Activity; Eligibility for "U" Nonimmigrant Status, 72 Fed Reg 53014, 53020 [Sept. 17, 2007]; Baiju, 2014 WL 349295 at *19), this Court was not involved with the prosecution of a perpetrator for qualifying criminal activity, as there was no conviction or sentencing of a defendant for the commission of any crime.
Submission of a law enforcement certification is an indispensable requirement to filing an application for a U-Visa with the USCIS (8 CFR §214.14 [c]). While judges are among the law enforcement officials authorized to issue those certifications, "[t]he fact that the regulations allow judges to grant U visa certifications does not mean that judges possess unfettered discretion to do so. Rather, the regulations require that a certifying judge be connected to an underlying criminal prosecution or investigation" (Romero-Hernandez, 141 F Supp 3d at 33 citing Agaton v. Hospitality & Catering Services, Inc., 2013 WL 1282454 at *4 [WD La 2013]; see also Linares v. Sheriff's Office of Broward County, 2014 WL 1787980 at *2 [WD La 2014]).
Courts do not make immigration policy or decide whether any particular individual should be granted authorization to remain in the United States (O.I.C.L. v. Department of Children and Families, 169 So3d 1244, 1250 [Fla Ct App 2015]; app dismissed ___ So3d ___, 2016 WL 6991201 [Fla Sup Ct 2016]). In this instance, this Court cannot "certify under the penalty of perjury" (see Form I-918 Supplement B, Part 6 - Certification) that it presided over an action which resulted in the conviction or sentencing of a perpetrator for the commission of qualifying criminal activity for purposes of issuing the law enforcement certification (8 CFR §214.14 [c] [2] [i]), nor can this Court certify the existence of any of the other facts or conditions which would support the issuance of the law enforcement certification. A statement to the contrary would be legally incorrect as well an inaccurate representation of the nature of the proceedings conducted by this Court.
The Court's inability to issue the requested law enforcement certification understandably raised concern that Ms. C. would be left without any avenue to obtain certification from a law enforcement official in support of her application requesting the issuance of a U Visa from the U.S. Citizenship and Immigration Service.
The family offense petition filed by Ms. C. indicates that she made a complaint to the 100th Precinct of the New York City Police Department ("NYPD") concerning the incidents alleged in the petition, and that a Domestic Incident Report ("DIR") was generated by the NYPD.
The Court's research indicates that the NYPD has established a Domestic Violence Unit located at Police Headquarters in Manhattan which is responsible for entertaining all requests for law enforcement certification for U Visa applicants. Moreover, in early 2016 the NYPD promulgated a new Chapter 22 of Title 38 of the Rules of the City of New York entitled "Requesting Certification for U Nonimmigrant Status (U Certifications)." The new rule specifies the procedure for a prospective U Visa applicant to submit a request for a law enforcement certification to the NYPD (38 RCNY §22-03). The Rule provides for a response to the request for certification within 45 days of the receipt of the request for the certification by the NYPD (38 RCNY §22-04 [a]), and lastly, the Rule provides an internal appeal process to the NYPD's "U Certification Appeals Office" in the event that a request for law enforcement certification is initially denied (38 RCNY §22-04 [b]).
The NYPD Domestic Violence Unit is located at One Police Plaza, Room 1312-O, New York, NY 10038.
Where a law enforcement certification is sought for a U Visa application where the qualifying criminal activity is "domestic violence" and where there was a criminal prosecution of the perpetrator, the applicant can request the certification from the NYPD, the District Attorney's office in the county in which the prosecution occurred, or the judge who presided over the criminal action.
In those instances where the "domestic violence" did not involve criminal prosecution of the perpetrator but the NYPD responded to a call for assistance or conducted an investigation of the incident, which appears to be the case here, the applicant may request the certification from the NYPD's Domestic Violence Unit.
Accordingly, this Court declines to issue the law enforcement certification requested by the petitioner.
This constitutes the decision of the Court. Dated: Jamaica, New York December 23, 2016 JOHN M. HUNT Judge of the Family Court