Intersectional Discrimination In U Visa Certification Denials: An Irremediable Violation Of Equal Protection?

Abstract

Through the U visa, the Immigration and Nationality Act offers a means to obtain legal immigration status for undocumented victims of domestic violence and other specified crimes who cooperate with law enforcement in the investigation or prosecution of those crimes. In order to apply for such a visa, a crime victim must obtain law enforcement certification that he or she has been, is being, or will be helpful to the investigation or prosecution of the crime. This Note argues that the Act’s provision of discretion to local law enforcement officials in the decision of whether to grant U visa certification requests violates the Equal Protection Clause of the Fourteenth Amendment, at least as applied to battered undocumented Latina immigrants in Suffolk County, New York. The Note uses certification denials to critique the equal protection doctrine in the United States and to show how the Inter-American human rights system’s conception of equal protection would better address the intersectional discrimination faced by undocumented victims of domestic violence. The Note discusses the ways in which interrelated forms of discrimination lead to unconstitutional denials of U visa certification requests. It then predicts the outcome of a potential suit based on the equal protection violation inherent in a discriminatory certification denial before domestic courts and before the Inter-American Commission on Human Rights. It argues that such a suit would have a much greater chance of success in the latter system. Finally, acknowledging the limited practical effect of a successful claim before the Commission, the Note proposes a domestic grassroots movement to more meaningfully address the intersectional discrimination that faces battered undocumented women.