Nelida Hernandez climbed the steps of the Gilroy Police station,
ready to report her ex-boyfriend’s crime. Nearly nine months ago,
she claims the drunken man slugged her, blackening one eye and
bloodying her nose, battering her with slurs as he dragged her by
her hair to the floor.
Gilroy – Nelida Hernandez climbed the steps of the Gilroy Police station, ready to report her ex-boyfriend’s crime. Nearly nine months ago, she claims the drunken man slugged her, blackening one eye and bloodying her nose, battering her with slurs as he dragged her by her hair to the floor.
“At first I didn’t want to report it,” the 20-year-old woman recalled. She was in love – or thought she was – and she feared he’d hunt down her family in Mexico, if she reported him.
But by June 4, Hernandez had had it. She and her ex-boyfriend were embroiled in a nasty custody battle over her two kids, plucked from his gang-linked home by Child Protective Services. And Hernandez had cleaned up her own act, kicking her drug habit. Flanked by her sister Maria and her new boyfriend, she walked into the station, and asked to speak to an officer.
“After everything that happened,” she said, “why should I keep covering for him?”
But Officer Taryn Hathaway had her suspicions as Hernandez told her story. According to Gilroy Police Sgt. Jim Gillio, Hathaway said Hernandez told her she needed the crime report to get a visa: A federal law passed in 2000 created a visa specifically for crime victims, and Hernandez thought that making the report might help her chances at legalization. Furthermore, Hathaway said Hernandez couldn’t supply her ex-boyfriend’s birthdate or his new address.
“This coupled with [Hernandez’] stated desire to obtain a visa … the fact the report was made late, and a custody issue with her children should make any prudent officer suspicious of her motives and ask detailed questions,” Sgt. Gillio wrote in response to a Dispatch inquiry.
Hathaway’s questions included “Why did you come here?” and “Do you have a green card?” according to Nelida’s sister, Maria Hernandez, who grew irritated as Hathaway interviewed them in the lobby. Eventually, Maria Hernandez walked out in disgust.
“Why was she asking her that,” Maria Hernandez asked, “if we were there to make a report?”
Hernandez and Hathaway disagree on a few key points. Hathaway doesn’t specifically recall asking Hernandez her immigration status, but may have, she told Gillio; Hernandez said she definitely did. And Hernandez says she brought along a restraining order that plainly displays her ex-boyfriend’s birthdate; Hathaway said Hernandez didn’t show her any court order.
“It is not our normal practice to ask immigration status during a domestic violence case,” or any ordinary contact, added Sgt. Gillio in writing. “However, there were circumstances surrounding this case that made this a reasonable inquiry.”
Alienating victims or guarding against fraud?
Asking legal status is a sticky issue: Though local police aren’t empowered to enforce federal immigration law, many immigrants fear they’ll be deported if they report crimes, said Philip Huang, an attorney with the Lawyers Committee for Civil Rights in San Francisco. Some cities, such as Los Angeles, ban officers from asking the immigration status of victims and suspects alike, to encourage victims to come forward. Even groups critical of illegal immigration, such as the Federation of American Immigration Reform, discourage police from asking victims’ status, said FAIR spokesman Ira Mehlman.
“The last message they want to send is that calling 911 will get someone deported,” said Huang, noting that batterers often use that threat to silence their victims.
“They’re perfect victims,” added Steve Smith, head of the Administration of Justice department at Gavilan College. Smith worked previously as a district attorney’s investigator in Santa Cruz County, and spent three years focusing on domestic violence cases. “I can think of few questions that would discourage an immigrant victim to come forward, let alone a domestic violence victim, than to inquire about their immigration status.”
But some say Hathaway’s suspicions of a false report were well founded. FAIR’s Ira Mehlman cautioned that the new U-visa creates “a tremendous potential for fraud,” by promising legal status to crime victims. The visa was created by the Victims of Trafficking and Violence Protection Act, passed in 2000, and provides legal status to victims who’ve suffered “substantial physical or mental abuse” from crimes including rape, prostitution and domestic violence – and who’ve documented those crimes, explained immigration spokesperson Sharon Rummery.
U-visas aren’t available yet: Immigration officials have yet to write the regulations guiding their use. Instead, potential U-visa candidates can apply for temporary work permits, renewable every three years.
FAIR opposed creating the U-visa, said Mehlman.
“Being a victim of domestic violence shouldn’t give you a free pass on having violated immigration law,” Mehlman argued.
Advocates counter that the new visa will protect immigrant victims of rape and domestic violence – crimes that go under-reported among citizens, and barely reported among noncitizens, said Annie Martinez, program coordinator with the countywide Support Network for Battered Women. Proponents are skeptical that immigrants might make false reports to gain legal status, since obtaining the visa requires a police statement.
“Police have to sign a form saying that yes, this person is cooperating with an investigation of a crime,” said Monica Arenas, a program specialist with the Family Violence Prevention Fund. “There needs to be proof, and if there isn’t,” the visa application is a bust. “Why should they ask about legal status?”
Stale cases might require more questions
Lawyers differ as to whether it’s legal for police to ask victims why and how they’re in the country. Huang contended that asking victims about their status could be a violation of the First Amendment, which protects individuals’ right to seek government protection, he said. But when victims report crimes, every question is crucial, said Santa Clara County assistant district attorney Rolanda Pierre-Dixon. That could include questions about legal status.
“A case that old is difficult to prove,” Pierre-Dixon said. “You have to ask a whole lot of questions … Normally, we would not ask about immigration status, but it might have relevance to a particular case.”
In Hernandez’ case, her boyfriend’s alleged brutality was just too old to prove, Officer Hathaway decided.
“I explained to [Hernandez] that due to the length of time that had elapsed since the crime occurred, the fact that there was no remaining physical evidence of the crime, and the fact that Hernandez could provide no information on the suspect, that there would be no investigation into this incident,” Hathaway wrote in her report, concluding, “Nothing further at this time.”
A few days later, Hernandez trekked to the South County Sheriff’s substation, to report another past episode of violence. Four deputies sat down and discussed the incident with her, she said, never asking her if she had a job or a green card.
“I was so impressed,” Hernandez said. “They took it seriously. I was just waiting for them to treat me the same way.”
