Introduction
In November 2022, a twenty-three-year-old undocumented woman, Karina Cisneros Preciado, traveled from Florida to Washington, D.C., to testify before the U.S. Senate Permanent Subcommittee on Investigations (PSI) about her experience in immigration detention. PSI had just concluded an eighteen-month investigation into “multiple allegations of medical abuse” against women detained at the Irwin County Detention Center (ICDC) in Ocilla, Georgia.
In its report, PSI found that detained women “appear[ed] to have been subjected to excessive, invasive, and often unnecessary gynecological procedures”
and stated that “[t]here appear[ed] to have been repeated failures to secure informed consent.”
One physician in rural Georgia had performed over 90% of certain OB-GYN procedures that were performed on all immigrants detained across the country between 2017 and 2020.
Irwin County held only 4% of women detained in immigration custody, and only 6.5% of all OB-GYN visits from 2017 to 2020 had involved this particular OB-GYN, but he performed 94% of all laparoscopies, 93% of Depo-Provera shots, 92% of limited pelvic exams, and 82% of dilation and curettage procedures performed on people held in immigration detention centers nationwide.
Both the federal government and the State of Georgia had previously sued the doctor for Medicaid fraud related to ordering unnecessary and excessive medical procedures.
He had also been dropped by a major insurer.
Yet ICE, which is part of DHS, failed to identify any red flags before allowing him to treat detained women who, due to the circumstances of their detention, had no ability to choose their medical providers.
Several medical experts who reviewed thousands of pages of medical records for PSI determined that the doctor had followed a consistent pattern of treatment for most detained patients.
This pattern involved performing a transvaginal ultrasound for women who reported bleeding or pain, diagnosing ovarian cysts (which are often perfectly normal), giving a Depo-Provera injection to treat the cysts, and then proceeding to surgery before the Depo-Provera injection even had time to take effect.
In her testimony, Karina explained how this pattern had affected her.
When Karina was detained, she was separated from her four-month-old daughter; at ICDC, she had repeatedly requested medical care because she had not yet had her postpartum visit and was experiencing pain.
One day, a nurse told her she was going off-site for a pap smear.
She was taken off-site to see an OB-GYN. She testified that, without explaining what he was doing or why, the OB-GYN performed a vaginal ultrasound, told her she had an ovarian cyst, gave her a Depo-Provera shot, and said that if the shot did not work in four weeks, she would need surgery.
Luckily, before any surgery could be scheduled, news about the doctor’s pattern of abuse became public through a whistleblower complaint.
Karina testified before PSI about her experience at ICDC because she wanted to hold the government accountable and did not want any other women to go through what she did.
She never thought that testifying would benefit her personally. But her testimony before the subcommittee could potentially qualify her for a U visa as the victim of a crime.
Congress created the U visa to encourage all immigrants, regardless of status, to report crimes and assist in their investigation.
The U visa provides temporary legal status and creates a path to apply for permanent residence in the United States. To qualify for a U visa, an individual must (1) have been the victim of a qualifying crime; (2) have suffered physical or mental abuse as a result of the criminal activity; (3) have information about the criminal activity; and (4) demonstrate that they
have been helpful, are being helpful, or are likely to be helpful to a law enforcement official, a judge, a prosecutor, or “other Federal, State, or local authorities investigating or prosecuting [the] criminal activity.”
This broad statutory language regarding who may certify a U visa encompasses congressional committees and subcommittees that investigate criminal activities.
But, to date, no congressional committee or subcommittee has ever certified a U visa. This Piece is the first to argue that congressional certification of U visas is a critical, untapped resource to prevent crimes against one of the most vulnerable populations: immigrants. As commentators have previously recognized, obtaining a U visa certification often poses a tremendous obstacle to survivors of crimes.
Police departments and other state authorities have adopted arbitrary and inconsistent certification requirements, denying certifications based on factors like “anti-immigrant bias, lack of training, or misunderstanding of the role of certifying agencies.”
Because the decision to certify is discretionary and unreviewable, there are no checks on the process.
The difficulty in obtaining certifications from traditional sources underscores the need to explore less obvious options.
Federal authorities, in particular, merit attention due to the “geographic roulette” that has resulted from divergent state and local certification practices.
While Congress cannot compel state authorities to certify U visas, it can, at a minimum, urge its own committees to use their authority appropriately to accomplish the U visa’s goals.
Part I explains why congressional committees are authorized under the statute and regulations to certify U visas. Part II then provides three examples in which such congressional certification is warranted. These examples include congressional investigations into alleged medical abuses of detained women, the so-called “Zero Tolerance” family-separation policy, and the use of solitary confinement in immigration detention.
I. Congressional Authority to Certify U Visas
Under U.S. law and regulations, Congress has the authority to issue U visa certifications for crime victims. Multiple congressional committees have investigated crimes involving immigrants: The Senate Permanent Subcommittee on Investigations held the hearing about ICDC;
the House Committees on Oversight and Government Reform (“Oversight Committee”) and House Judiciary Committee, among others, held hearings on family separation;
and the House Judiciary Committee’s Subcommittee on Immigration and Citizenship held hearings on the misuse of solitary confinement of immigrants.
These congressional committees are federal authorities engaged in investigations of criminal activity who can certify immigrants’ cooperation with their investigations, as required for those immigrants to obtain U visas.
A. Congress and DHS Have Broadly Defined “Certifying Authorities”
The Immigration and Naturalization Act (INA) requires DHS to determine that a U visa applicant has been 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 [Immigration and Naturalization] Service, or to other Federal, State, or local authorities investigating or prosecuting [the] criminal activity [on which the application is based].”
Congress intended the certification provision to be construed broadly. The Battered Immigrant Women Protection Act of 2000 (BIWPA) created the U visa for survivors of domestic violence and victims of similar crimes.
The Act was incorporated into the Violence Against Women Act of 2000, which, in turn, was incorporated into the Victims of Trafficking and Violence Protection Act (VTVPA).
The VTVPA was then codified into the INA.
As one author notes, the “BIWPA conference report supports broad U Visa certification” because the report focused on strengthening the protections for “battered immigrant women.”
The conference report describes U visas as tools to help survivors.
It “indicates that the congressional purpose was to help as many survivors as possible,” and “allowing as many agencies as possible to certify U Visa[s]” would best serve Congress’s purpose.
The definition of a “certifying agency” set forth in DHS’s regulations further confirms that Congress has certifying authority. The regulations define “certifying agency” as:
Federal, State, or local law enforcement agency, prosecutor, judge, or other authority, that has responsibility for the investigation or prosecution of a qualifying crime or criminal activity. This definition includes agencies that have criminal investigative jurisdiction in their respective areas of expertise, including, but not limited to, child protective services, the Equal Employment Opportunity Commission, and the Department of Labor.
The regulation’s second sentence provides examples of qualifying authorities, but certifying authorities are explicitly “not limited to” those kinds of agencies. The regulation’s broad definition thus permits congressional committees and subcommittees to certify U visas given their investigatory powers.
B. Certain Congressional Committees Qualify as “Certifying Authorities”
Congress is vested with broad investigatory powers that authorize it to certify U visas.
Specific congressional committees can constitute investigatory federal authorities for purposes of U visa certifications. The Oversight Committee, for example, is the “main investigative committee in the U.S. House of Representatives” and has the “authority to investigate the subjects within the Committee’s legislative jurisdiction.”
The Oversight Committee has legislative jurisdiction over, among other topics, the “[o]verall economy, efficiency, and management of government operations and activities.”
The Oversight Committee is within its purview to investigate criminal activity, such as the abuses that occurred in the family-separation context and in immigration detention more broadly, because relevant ICE policies, such as detention protocols, qualify as “government operations.” Additionally, the Oversight Committee has the authority to investigate “‘any matter’ within the jurisdiction of the other standing House Committees.”
The Committee on Homeland Security has jurisdiction over the “[o]rganization, administration, and management of the Department of Homeland Security.”
The Oversight Committee therefore has jurisdiction to investigate ICDC, the family-separation policy, and misuse of solitary confinement in immigration detention because these matters involve abuses that fall under DHS’s purview.
Other committees and subcommittees—including PSI, which is part of the Senate Committee on Homeland Security and Governmental Affairs, and the Senate Judiciary Committee—also have authority to sign certifications for victims of qualifying crimes. PSI’s investigatory powers include, for example, the authority to subpoena witnesses and to recommend that they be held in contempt if they refuse to testify.
The Senate Judiciary Committee has similarly cited individuals as in contempt for failing to appear before the committee and to produce documents related to its investigations.
Congressional committee and subcommittee chairpersons can serve as the “certifying officials” who sign the U visa certification, as required under the regulations.
A “certifying official” is the “head of the certifying agency, or any person(s) in a supervisory role who has been specifically designated by the head of the certifying agency to issue U nonimmigrant status certifications on behalf of that agency.”
As such, a chairperson, who is the head of a congressional committee or subcommittee, could issue a U visa certification, or they could delegate another official in a supervisory role to be the designated certifying official.
Entities that certify cooperation for purposes of a U visa need not have the authority to prosecute crimes. The U visa statute and regulations do not require that the perpetrator of the crime be arrested, prosecuted, or convicted for an applicant to be granted a U visa.
Police departments, the DOL, and state child welfare agencies are all recognized as certifying agencies due to their investigatory powers
even though, like Congress, they do not have the authority to prosecute qualifying crimes.
Under the relevant statutory and agency guidance, police departments, congressional committees, and other authorities alike are investigatory authorities that are empowered to offer U visa certifications. It is important to note that although Congress can grant an underlying U visa certification, USCIS has ultimate discretion to grant the U visa.
Congressional issuance of U visa certification does not remove any of that discretion from USCIS.
2. Examples of Contexts Warranting Congressional U Visa Certifications
A. Medical Abuses in Immigration Detention
Allegations of medical abuses leveled by detained immigrants have potential criminal implications.
In fact, several federal agencies have investigated the OB-GYN who was accused of performing unnecessary medical procedures on women detained at ICDC.
PSI is a permissible certifying authority for U visas because it is a federal “authority” that took “responsibility for the investigation” of the abuse and medical mistreatment perpetrated at ICDC.
PSI undertook a lengthy, bipartisan investigation and issued a detailed report that is over one hundred pages long.
The subcommittee also heard testimony from six victims and subpoenaed the accused doctor, who refused to appear at the hearing, invoking his right against self-incrimination.
That the subcommittee does not engage in criminal prosecution is irrelevant since prosecution is not required for certification of a U visa.
PSI’s report recounts that the women detained at Irwin County felt “violated after their treatment by [the OB-GYN].”
Some “still live with physical pain and uncertainty regarding the effect of his treatments on their fertility.”
The women interviewed by PSI described instances in which the OB-GYN “was rough and insensitive while performing procedures, continued despite their complaints regarding pain, and failed to disclose the potential side effects of certain procedures or even answer questions regarding his diagnosis or treatment plan.”
Another serious issue identified by PSI is that there appeared to be repeated failure to secure informed consent.
This evidence could support U visa certification based on several potential qualifying offenses, including “abusive sexual contact,”
“felonious assault,”
“false imprisonment,”
“obstruction of justice”—which has been construed to include a conspiracy to defraud the United States—
and “any similar activity in violation of Federal, State, or local criminal law.”
USCIS has explained that “[t]hese are general categories, and not specific crimes or citations to a criminal code.”
A detailed discussion of each of these offenses is beyond the scope of this Piece, but we briefly analyze abusive sexual contact as an example.
If someone has “sexual contact” with an individual in federal custody “without that other person’s permission,” the offense is a federal crime punishable by up to two years of imprisonment.
Under federal law, the term “sexual contact” does not require an intent to arouse or gratify sexual desire; touching the genitalia of another person with an intent to “abuse, humiliate, harass, [or] degrade” satisfies the definition.
Engaging in a nonconsensual “sexual act” with someone in federal custody is an even more serious offense, punishable by up to fifteen years.
The definition of a “sexual act” includes “the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”
A “sexual act” may therefore include penetration with fingers, a vaginal ultrasound, speculum, or other medical device with an intent to humiliate, harass, or degrade. A doctor who engages in such nonconsensual touching or penetration of a detained immigrant in federal custody with the requisite intent would thus be committing a crime.
Certifying a U visa does not require proof that a qualifying offense occurred. If the standard were “proof beyond a reasonable doubt,” a criminal conviction would be required—but a certification may be signed without a conviction, a criminal charge, or even an investigation.
The INA provides that DHS may consider “any credible evidence” in acting on a U visa petition.
Since neither the INA nor the regulations specify a different standard for certifying that the immigrant was a victim of a qualifying offense, the “any credible evidence” standard should be applied to the certification as well.
This is a lower standard of proof than both “clear and convincing evidence” and a “preponderance of the evidence.”
The Chair of PSI, Senator Jon Ossoff, described what had transpired at ICDC as “a catastrophic failure by the Federal Government to respect basic human rights” and among the most “serious abuses this Subcommittee has investigated during the last two years.”
As a federal body authorized to investigate criminal activities, PSI has the power to help right such a wrong. If PSI determines that there is “any credible evidence” that a qualifying offense was committed, it may certify U visas for the women involved.
Likewise, the House Oversight Committee is a permissible certifying authority. In September 2020, the House Oversight Committee announced that it was “investigating allegations” regarding nonconsensual gynecological procedures and violations of COVID-19 protocols at ICDC.
The Oversight Committee requested pertinent documents to assist the investigation and issued a subpoena for those records.
If the Oversight Committee finds “any credible evidence” that a qualifying offense has been committed, it, too, may certify U visas.
B. Family-Separation Policy
Another context appropriate for congressional certifications of U visas is family separations pursuant to the so-called “Zero Tolerance” policy of the Trump Administration.
The policy, designed at the highest levels of the federal government, intentionally sought to separate parents from their children at the border with the purpose of inflicting extraordinary trauma on them.
The trauma was not an incidental byproduct of the policy—it was the very point.
The federal government sought to inflict so much distress on parents and children seeking asylum that other families would be deterred from trying to seek refuge in this country.
Multiple congressional committees have investigated the family-separation policy, and each has the authority to issue U visa certifications for the affected families.
By way of background, curbing asylum had been a central focus of the Trump Administration’s immigration policy. On April 6, 2018, then–Attorney General Jeff Sessions announced that the government would institute a “zero tolerance” policy, mandating the prosecution of all persons who cross the United States border between ports of entry.
The purpose of the “zero tolerance” policy was to deter Central Americans from seeking asylum or otherwise coming to the United States.
As of 2021, the federal government “identified 3,913 children who were separated from their families at the U.S.–Mexico Border between July 1, 2017[,] and January 20, 2021, based on the ‘Zero-Tolerance’ policy.”
The actual number of separated children may be far higher.
Administration officials at the highest levels knew well before implementing the policy that it would harm families.
While serving as Secretary of Homeland Security, John Kelly stated that he “would do almost anything to deter the people from Central America” from migrating to the United States, including separating children from their parents.
After the forced separations began, Sessions confirmed that the goal was deterrence.
In May 2018, Kelly, who had since become President Donald J. Trump’s Chief of Staff, callously dismissed any concern about the government’s forced separation of a child from her mother, remarking: “The children will be taken care of—put into foster care or whatever.”
Despite widespread condemnation and legal challenges, President Trump continued to defend the policy through December 2018 as a deterrent to migration from Central America when he tweeted, “[I]f you don’t separate, FAR more people will come.”
Sadly, the most senior members of the U.S. government intentionally chose to cause parents and small children, including infants and toddlers, extraordinary suffering to accomplish their policy objectives.
Once the policy was implemented and immigration officers had separated children from their parents, DHS transferred children to the Office of Refugee Resettlement (ORR), “which is responsible for the long-term custodial care and placement of unaccompanied [noncitizen] children.”
Meanwhile, separated parents were transferred to ICE custody.
But DHS failed to take even the most basic steps to record which children belonged to which parents, highlighting the government’s utter indifference to the dire consequences of the policy on the separated families.
When the “Zero Tolerance” policy went into effect, ICE’s system “did not display data from [Customs and Border Protection (CBP)] systems that would have indicated whether a detainee had been separated from a child.”
As a result, when ICE was processing detained individuals for removal, it “made no additional effort to identify and reunite families prior to removal.”
As emphasized by Judge Dana M. Sabraw in Ms. L. v. ICE, the agencies’ failure to coordinate tracking of separated families was a “startling reality” given that
[t]he government readily keeps track of personal property of detainees in criminal and immigration proceedings. Money, important documents, and automobiles, to name a few, are routinely catalogued, stored, tracked and produced upon a detainee’s release, at all levels—state and federal, citizen and [noncitizen]. Yet, the government has no system in place to keep track of, provide effective communication with, and promptly produce [noncitizen] children. The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property.
At least four congressional committees have investigated the Trump Administration’s family-separation policy. First, the House Energy and Commerce Subcommittee on Oversight and Investigations held a hearing on February 7, 2019, at which Chair Diana DeGette condemned the “cruel” and “shameful” policy that caused “unnecessary long-term harm” to thousands of children.
Second, at the House Judiciary Committee’s hearing on February 26, 2019, Chair Jerrold Nadler promised to “hold the administration accountable for its indefensible and repugnant family-separation policy and for the injuries it has inflicted on thousands of children and families.”
Nadler invoked the criminality of the policy, explaining, “When a stranger rips a child from a parent’s arms without any plan to reunify them, it is called kidnapping.”
The House Judiciary Committee launched a twenty-one-month investigation and issued a report with its findings.
Third, on March 26, 2019, the House Homeland Security Subcommittee on Border Security, Facilitation, and Operations held a hearing at which Chair Kathleen Rice explained, “Congress has a responsibility to continue questioning DHS’s implementation of Zero Tolerance, its handling of families and children in its custody, its compliance with reunification efforts, and the standards used to determine if a family should be separated.”
Finally, the House Oversight Committee investigated the family-separation policy for nearly three years. Its investigation began in July 2018,
included a subpoena for records in February 2019
and a hearing in July 2019,
continued into 2020,
and culminated with a hearing on February 4, 2021.
All four of these congressional committees are permissible certifying authorities for U visas. As the regulations require, each is a federal “authority” that took “responsibility for the investigation” of thousands of family separations.
At the conclusion of its twenty-one-month investigation, the House Judiciary Committee concluded that “[d]espite full knowledge that hundreds of children would likely be lost to their families forever, the Administration chose to expand the pilot program into a permanent nationwide policy.”
The Judiciary Committee further found that the family-separation policy “was driven by an Administration that was willfully blind to its cruelty and determined to go to unthinkable extremes to deliver on political promises and stop migrants fleeing violence from seeking protection in the United States.”
Ultimately, the Committee found that “hundreds of migrant children may never be reunited with their parents.”
Likewise, the House Oversight Committee stated that it was “deeply concerned by . . . the lack of clear and transparent processes” under which the children were taken from their families.
In reviewing a separate report on the Trump Administration’s child separation policy, the Oversight Committee concluded, among other things, that “Attorney General Sessions and his top advisors misled key DOJ officials and other agencies about the purpose and implications of the child separation policy.”
These congressional findings provide a basis for qualifying offenses for the U visa. Among the U visa’s qualifying offenses are “abduction,” “kidnapping,” and “any similar activity” under federal or state law.
Federal law defines these offenses as covering “[w]hoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds” a person “willfully transported in interstate or foreign commerce.”
Federal officers sent many of the thousands of children they forcefully separated “to shelters in different states” than their parents.
DHS officials intentionally forced children across state lines far from their parents to prevent family reunifications.
Matt Albence, who oversaw the ICE division responsible for deportations, “suggested that the Border Patrol deliver separated children to HHS [which would often transport them across state lines] ‘at an accelerated pace[]’ . . . to minimize the chance that they would be returned to their parents.”
For these families whose children were forcibly transported across state lines without their consent, the facts offer a basis for certifying U visas.
Another qualifying offense for the U visa is obstruction of justice.
Given that the Trump Administration failed to comply with multiple requests from the House Oversight Committee’s investigation,
the Oversight Committee would be well within its power to issue U visa certifications based on this qualifying crime to families affected by the family-separation policy. According to a lawyer who investigated Zero Tolerance for a congressional committee, “DHS was lying to us and not giving us documents . . . . They very much withheld stuff from us, and I would catch them red-handed and flag it for them, and they’re like, ‘Oh well, we’ll go back and look,’ and it was a constant BS battle.”
If there is sufficient evidence that the Trump Administration intimidated, threatened, or corruptly persuaded witnesses to withhold testimony or records from official proceedings, witness tampering
may also be a basis for qualifying offense for a U visa.
Finally, international law arguments could be developed in support of U visa certifications. Commentators have argued that family separation constitutes a crime against humanity under international criminal law.
According to medical experts affiliated with Physicians for Human Rights (PHR), a nonprofit organization, “the U.S. government’s treatment of asylum seekers through its policy of family separation constitutes cruel, inhuman, and degrading treatment and, in all cases evaluated by PHR experts, rises to the level of torture.”
The medical experts reached these conclusions based on the “pervasive symptoms and behaviors consistent with trauma” exhibited by the formerly separated families;
this pervasive trauma persisted even years after families had been reunified.
PHR has also noted that the family-separation policy constituted enforced disappearance.
When U.S. officials intentionally carried out family separations to cause severe pain and suffering in order to punish, coerce, or intimidate asylum seekers to give up their claims,
U visa certification may be appropriate based on the U.S. officials’ actions.
As federal bodies authorized to investigate criminal activities, the aforementioned congressional committees have the authority to aid separated families by certifying their U visas.
C. Solitary Confinement
Congressional investigations that reveal the misuse and overuse of solitary confinement in immigration detention also provide a basis for U visa certifications. The harmful impact of solitary confinement has long been known.
In 2013, ICE issued a directive stating that “[p]lacement of detainees in segregated housing is a serious step that requires careful consideration of alternatives” and “should occur only when necessary and in compliance with applicable detention standards.”
The 2013 directive notes that “placement in administrative segregation due to a special vulnerability should be used only as a last resort and when no other viable housing options exist.”
The directive further places a thirty-day limit on solitary confinement for disciplinary purposes, with some exceptions.
Yet, as congressional hearings have revealed, ICE and its contractors often misuse solitary confinement for individuals with mental illness, and immigrants are held in solitary for prolonged periods, including for months at a time.
The House Judiciary Committee’s Subcommittee on Immigration and Citizenship held hearings in 2019 on the “Expansion and Troubling Use of ICE Detention.” Whistleblower reports submitted in the course of those hearings highlighted ICE’s troubling misuse of solitary confinement for immigrants with mental illness, including immigrants on suicide watch, as well as prolonged use of solitary confinement for fifteen-to-forty-five-day periods for disciplinary infractions such as “insolence” and “failure to follow an order.”
Citing the lack of meaningful oversight and the government’s awareness of the system’s failures, Representative Pramila Jayapal noted on the record that an ICE supervisor had “warned that ICE’s own medical service provider was ‘severely dysfunctional and that preventable harm and death to detained people ha[d] occurred’” in the
case of an immigrant with schizophrenia who committed suicide while held in solitary confinement.
Hearings held by the House Committee on Homeland Security’s Subcommittee on Oversight, Management, and Accountability revealed similar abuses, including deaths by suicide of immigrants placed in solitary confinement and government inspections of facilities that “fail[] to ensure compliance with ICE’s own detention standards.”
Testimony submitted to the subcommittee emphasized the “fatal consequences” of solitary, including two men at Stewart Detention Center who had “hanged themselves in their isolation cells” after they were placed in solitary confinement instead of receiving mental health care for their worsening schizophrenia symptoms.
Other abuses cited included the prolonged time in solitary; one immigrant was cumulatively detained for over nine hundred days in solitary.
These practices, which violate ICE’s own directives as well as federal detention standards and statutes, can constitute qualifying crimes for purposes of U visa certification.
Most relevant in the context of solitary confinement, USCIS has identified the qualifying crimes of “false imprisonment,” “obstruction of justice,” “unlawful criminal restraint,” and “torture” as general crime categories that may qualify victims for U visas.
In terms of obstruction of justice, multiple reports have documented the misuse of solitary confinement at ICDC as a measure to prevent the investigating or reporting of rights violations.
That conduct could constitute obstruction of justice under U visa regulations, which explain that “[a] petitioner may be considered a victim” of obstruction of justice or witness tampering if they were “directly and proximately harmed by the perpetrator” and the offense occurred “as a means” to either prevent investigation or facilitate the perpetrator’s abuse or control over the petitioner.
Additionally, the definition of “false imprisonment” under Georgia law, for example, includes confinement and detention without legal authority
and could include solitary confinement when it is misused as a retaliatory measure. Similarly, as the congressional hearings and investigations by the DHS Office of Inspector General have demonstrated, facilities often do not meet the requisite ICE standards for solitary confinement,
and the crime of unlawful restraint
may therefore be certified.
The use of solitary confinement in immigration detention can also meet the definition of “torture” as set forth by the United Nations Special Rapporteur on Torture.
The Special Rapporteur on Torture has defined “solitary confinement” as twenty-two to twenty-four hours per day in physical and social isolation in a confined space.
After fifteen days, this prolonged solitary confinement can constitute torture and thereby qualify as a certifiable crime for purposes of a U visa.
Indeed, the Special Rapporteur on Torture has specifically cited concerns about the routine use of solitary confinement in the United States, including for individuals with mental health conditions, which may “trigger and exacerbate psychological suffering, in particular in inmates who may have experienced previous trauma or have mental health conditions or psychosocial disabilities.”
The conditions of solitary confinement vary depending on the facility in which immigrants are held, but individuals are typically housed in small, windowless cells with little, if any, time outside.
As the Special Rapporteur explained upon reviewing U.S. practice, such confinement may cause “severe and often irreparable psychological and physical” harm, ranging from “progressively severe forms of anxiety, stress, and depression to cognitive impairment and suicidal tendencies.”
The Special Rapporteur concluded that such “deliberate infliction of severe mental pain or suffering may well amount to psychological torture.”
Conclusion
Given Congress’s in-depth investigations into each of these issues, one might wonder why congressional committees are not certifying U visas. The most obvious answer is fear of political pushback for helping undocumented immigrants. But the U visa bill was passed with broad bipartisan support.
To the extent some legislators were worried that immigrants would try to obtain U visas through fraud,
that concern should not exist in situations in which bipartisan congressional committees have investigated and documented the abuses against those immigrants. Failing to certify immigrants who are willing to cooperate in congressional investigations also makes them more vulnerable to removal, which undermines Congress’s ability to investigate the alleged abuses.
Each of the foregoing case studies highlights an aspect of the brutality that immigrants face in U.S. detention as well as the investigations by congressional committees and subcommittees into those harms. Notably, congressional committees and subcommittees have the authority to do more than simply investigate these abuses and issue reports with their findings. Congressional committees and subcommittees can and should offer meaningful relief to immigrant survivors by certifying their U visas. While this certification process would not offer survivors lawful status in the United Status—since only USCIS can grant U visas—congressional certifications of U visas would be a meaningful step to redress harms inflicted by the U.S. government and its contractors. Simply put, Congress should use its authority to do what is legally authorized and morally and ethically required in the wake of government-caused harms.