Unsettling Innocence: Rewriting The Law’s Invention of Immigrant Woman as Cooperator and Criminal Enforcer

Cooperation

In 2009 I met with M.L., a family law and immigration law attorney from the Bay Area. M.L. explained the mechanics of the U visa to me and then began discussing cooperation in ways that I had not heard before. Rather than focusing only on why women hesitate to help law enforcement, M.L. articulated a relationship that had formed and the struggle within it between her, her clients, and local law enforcement.

Can you imagine having to work under that kind of rubric, that gives them so much power over your client? If your client said no to cooperation one day because they were feeling bad, or they were scared, is it fair for them to get denied a visa just because of that? Law enforcement will say—well, she did not cooperate. When I first started working . . . I couldn’t get a certification for my client [or even] a letter stating that they had no [criminal] record . . . it’s a problem . . . a lot of police departments, do not want to help us with immigration cases, they simply do not want to help us . . . .

“Can you imagine?” she asked, describing the pressures and constraints she faced from law enforcement. As part of each U visa application, M.L. is required to submit a certification form, which her client must obtain from a qualifying agency to guarantee that cooperation is part of the deal. She asked: What if a client says no to cooperating one day? After asking, “Can you imagine?,” she began to concretely map out how the visa would shape the future of her clients and her work in ways that were not present before. M.L. argued that the “rubric” had so much power over her clients that it pushed them to cooperate in order to be eligible to apply for (not to receive) the visa. While her client perhaps could say no, M.L.’s story also reveals how impossible it is for an immigrant woman without legal status to actually say no to cooperation. This also reflects M.L.’s understanding of her own role. While she asked me to imagine what would happen to her client, her reflections also included an interpretation of her own advocacy work if she were to say no one day.

Undocumented immigrant women who seek to leave conditions of violence face many concerns: their own safety and the safety of their children and other family members; difficult economic conditions, potential deportation, lack of shelter, and trauma, language and education; and fear of law enforcement or state agencies. The U Visa is not primarily designed to address any of these concerns. Instead, it temporarily removes the burden of legal status but it does so only for the duration of the visa and puts in place other demands—such as the newly required cooperation with law enforcement—that inspire their own forms of apprehension. As M.L. shared, “It’s a problem . . . a lot of police departments do not want to help us with immigration cases,” and are not invested in the U visa for its role in immigrant lives, but for its purpose as a tool that will assist law enforcement in the successful prosecution of criminal activity—a project which expands much further into the policing of black communities, immigrants, gender-nonconforming youth, and social services, and the expansion of counterterrorism programs.

In an October 2009 article, the FBI Law Enforcement Bulletin described the goal of the U visa in this way:

Law enforcement personnel strive for strong connections with all citizens. In pursuit of this goal, striking an appropriate balance—one that punishes wrongdoers while protecting victims—can present a challenge. One way that officers not only can foster better relationships with immigrant communities but also increase offender accountability, promote public safety, and help ensure that crimes translate into convictions is to promote awareness of the U Visa, which provides important immigration benefits to cooperating crime victims.¹

The Bulletin argues that with the cooperation of immigrants, the law will do its part by addressing the “challenge” that immigrant women are afraid to approach the police. In response, the law seeks to “[strike] an appropriate balance—one that punishes wrongdoers while protecting victims” and to strengthen “the ability of law enforcement agencies to investigate and prosecute.” If we take a step back, however, the challenge described here is not defined by the historical conditions of state violence against immigrants that have and continue to lead to fear of police, but instead suggests that because immigrants may hesitate to cooperate, law enforcement agents are unable to do their job of punishing “wrongdoers” and protecting “victims.” The Bulletin argues that the U visa, by fostering trust and active cooperation between immigrant women and law enforcement, will help tease out the good from the bad, the victims from the wrongdoers. In effect, it suggests that providing legal status to undocumented women is unconditionally temporary and that this temporality is tied not to the shifting conditions of women’s lives but rather, to the appropriate time needed to strengthen the police state.

The fear of deportation can cause immigrant communities to cut themselves off from police and not offer information about criminal activity, even when victimized. Consequently, predators remain on the street, emboldened because they know they can strike with a degree of impunity. As a result, societies face increased crime, including series offenses, and the perpetrators victimize and endanger everyone, not just illegal immigrants.²

Here, the narrative necessarily writes out other experiences of fear such as the ones M.L. shared. In those stories, clients feared what would happen if they could not cooperate one day because of an awareness that they were both innocent and culpable clients whose relationship to the state did not automatically result in a steadfast desire to prosecute members of their own communities.³ In The Bulletin however, the fear immigrant women have against deportation is marked as irrational (they “cut themselves off … even when victimized”) and also misplaced (the police are not to be feared). The “consequence” that The Bulletin describes is a state of fear the entire public experiences, not “just illegal immigrants” furthering the narrative that immigrant women’s lives are of value only when tied to the betterment of the public good overall. Why must it be that undocumented immigrant survivors receive protection only if their “fear” is leveraged for the public from which they are to be deported from and the betterment of a governing agency with the responsibility of enforcing their expulsion?

What then, of undocumented immigrant survivors such as M.L.’s clients? Are their fears and struggles really irrational and misplaced because they hesitate to cooperate with the police? M.L.’s interpretations suggest a very necessary and important reframing around cooperation that does not adhere to these legal terms. Indeed, this is a law which does nothing to decriminalize legal status and leaves the material conditions of culpability still very much embodied by undocumented immigrant women, even as they apply for a visa they are not sure they will receive. In contrast to The Bulletin’s definition of a one-dimensional fear, M.L. highlights her clients’ fear of the forced requirement to provide help to law enforcement. Instead of fearing law enforcement, M.L.’s clients have expressed a fear of being made into enforcers of the law, of having no room to say no to cooperation, and of becoming defined by this particular relationship with the law.

The U visa renders immigrant women as both objects of targeted protection and subjects who the law enlists to cooperate in the unleashing of criminal enforcement. This makes evident the purpose of the U visa—not to protect undocumented women from violence, but to strengthen and improve law enforcement: “… the fear of deportation has created a class of silent victims and undermined officers’ attempts at community oriented policing.” At the same time, the schema of cooperation frames this relationship based on the agreement of a “willing” crime victim, rather than the coercive condition of undocumented immigrant women. Thus, the law’s investment in innocence is almost superfluous to the mechanism of the U visa, which functions in many ways like other existing “snitch” visas and laws. But what the U visa does accomplish is that it swallows immigrant women’s lives with the legal fiction of cooperation, where in the absence of a shared goal between law enforcement and immigrant women a narrative logic of “better relationships” is still somehow produced.

In 2010, I met S.P., an attorney in the East Bay Area who worked with a legal center serving women from both Latina and Asian immigrant communities. S.P. helped clients seek asylum, worked with refugees, and provided assistance to a number of women who sought help from the law as survivors of domestic violence. Like M.L., she spoke at length about shifting relationships with law enforcement—more than she ever would have imagined when she first started serving clients. S.P. was clear that the only strategy in place for legal relief was a “victim-based” strategy and that she did what was best for her clients. While she worked within this strategy, she also wrestled with its implications. When I asked her about the U visa’s complexities, S.P. shared this interpretation:

We have clients who feel, “I was a crime victim and I have no status, if there was amnesty I would go for amnesty, but being a crime victim is the only way available to me and so I have to do it.” It’s absurd that people have to use this, this strange thing. Because the U visa is a bizarre way of relating to the community by saying, you can’t get status until you say that somebody did something to you, and that’s a weird way to conceive of one’s self.

In her interpretation of the U Visa, S.P. began with an articulation of coercion—“being a crime victim is the only way . . . so I have to do it”—and she continued to discuss “this strange thing” where immigrant women have to say that someone did something to them in order to obtain temporary legal status, not freedom or liberation or sense of self. How has it come to be that we overlook what the visa does to understandings of the self and to relationships between advocates and clients? Under the U Visa, women live within a narrative logic that allows them to be innocent if they are victims of crime enacted by a person, but women can never be recognized as victims of the state and its violences. This is the “absurd” thing that S.P. describes as something her clients feel when they have to enforce the law against their own community—this is, as S.P. explains, is “a weird way to conceive of one’s self.” But in this legal scheme, it is the only way to conceive of one’s self. The conception is in many ways, a strategy of survival for advocates and their clients as they struggle to become innocent (to have legal status) at the very same moment the law denies that they were ever anything but innocent to begin with (of the crime of gender and sexual violence).⁴

How do we unsettle “innocence” in law? Fictionalized, then, as “willing” and “empowered” to cooperate and serve the purposes of police, immigrant women’s interior experiences are never realized outside of this constant need to demonstrate how undamaged they are in order to be “willing” and credible in the law enforcement work expected of them, should they be granted a temporary visa. In the U visa scheme, there is no future for survivors of violence outside the history of punishment grounded in community policing and cooperative discourses historically waged against black communities as part of neoliberal crime fighting and punitive agendas.

Senator Diane Black of Tennessee, a proponent of militarized policing and harsher penalties for migration, introduced the U Visa Reform Act in February 2013.⁵ Rather than eliminate the visa, she proposed: “While a criminal act against any individual in this country is inexcusable and reprehensible regardless of immigration status, it is not good immigration policy to staple green cards to police reports for those in the country illegally.”⁶ The bill aims to make the U visa “truly temporary” by eliminating the opportunity for visa holders to apply for green cards, removing eligibility for family members, reducing the kinds of crimes that qualify for eligibility, and reducing the duration of the visa. “We are a nation of immigrants,” Black argued, but a “nation built upon the respect for the rule of law” that should support only those who “follow the law” and “want to contribute to the betterment of our nation” to have the opportunity to do so.⁷ Legal inclusion into the nation-state is the site of violence. The Senator’s deployment of national unification serves as the mechanism of legibility for racialized and sexualized legal subjects through what Chandan Reddy has argued is the state’s success in establishing itself as a “secured” and safe distributor of legal entitlements, recognized as the ongoing neoliberal narratives of the welfare state’s framing of the deserving and the worthy along racial and gendered determinants.⁸ It is important to note that the Senator does not reject the U Visa. She is in fact invested in maintaining it as a form of temporary inclusion in so far as it allows her to set forth a narrative that reinscribes the law’s avowal of its own ability to clearly determine the “bad” immigrants from the “good” despite the actual conditions of legal confusion, coercion, and cooperation immigrant women undergo throughout the U Visa application process. In this way, Senator Black envisions a cooperative future that rationalizes the nation-state’s purported need to use immigrant women as enforcers in the nation’s defense of itself. Importantly, even when the fairness of this cooperation has been questioned in public discourse, it has been suggested that immigrant women may be getting too much out of the deal.

Instead, I argue that the U visa is a form of legal violence not because its terms are insufficiently fair and equal, but because this law continues to push women into the purest form of innocence as the basis for legitimizing their worthiness of legal status even as it is well aware of the irreparable culpability of undocumented conditions. The story is that only innocent immigrants are worthy of protection and granted the gift of legal status—the ideal exchange. As innocent victims of violent crime, their willingness to cooperate is abstracted into the purportedly nonviolent effect of immigration law. The law removes itself from any responsibility here and stands innocent in relation to the conditions that women undergo as they are coerced to move between two legal figures—from the culpable stance (at risk due to lack of legal status) to the enforcer who must cooperate with the law in order to grapple with the pressures of maintaining this fiction of pure innocence. While this potentially results in the delivery of a visa, it does not address the conditions women undergo, as M.L. articulated in her description of her work with clients. Further, white supremacist discourses such as Black’s are afforded opportunities to restage the fictive need for a fairer exchange between the state and immigrant women where only “those who want to contribute to the betterment of our nation” are offered visas—a scenario in which immigrant women can never win because their culpability always conditions the terms by which they are rendered willing cooperators. Black produces a future where immigrant women can only become legal subjects who enforce prosecution if they accept the visa. This is a condition that we cannot afford to gloss over as mere “cooperation” or as a fair benefit for legal innocence because, as M.L. asked, what if one said no to cooperation someday?

Immigration studies scholarship has theorized the trope of the “good” immigrant versus the “bad” immigrant as the locus of the foreign subject’s raciality, which fosters an uncritical empathy for the state’s efforts in determining both. This places a charge upon some immigrant bodies through enactments of violence against others to produce a repetitive threat upon which counter-terrorism and national security programs legitimate their purpose.⁹ Immigrant women who are figured by the U visa, however, fall under neither the trope of the good immigrant nor the trope of the bad immigrant. As figures within this law, they never occupy only one determinant position severed clearly from the other. While the visa’s promise to rescue innocent and “good” women is indeed set to garner support for the criminalization and punishment of “bad” immigrants, immigrant women who become applicants for the visa have an extended, deeper, and much more troubling configuration within the law. They become trapped within an ongoing debate they can never win unless the lack of legal status is decriminalized—a possibility that is entirely foreclosed by this regulated and criminally enforced form of cooperation. There is a need to step back and fundamentally question the underlying assumption that ending violence in women’s lives is the shared goal seemingly driving cooperation between women and law enforcement throughout the U visa process for it is instead, the state’s enhancement of institutions of punishment and its claim for defense. Indeed, it is precisely the absence of a shared goal that reveals the legal fiction of cooperation. Existing scholarship on the U visa has primarily focused on the slow release of regulations and the cap on available visas as the only problems women face when they are kept waiting due to the failures of the law. However, any number of solutions to the failures of the law have left the logic of cooperation and its fictional status unchecked and untouched, thereby directing our attention away from what happens when the law does work and what happens when the law is navigated and negotiated by legal advocates who serve undocumented survivors of violence. My aim in this article is not to point out failures in applying the law or to gesture toward reform, but rather to question at what cost—and at whose expense—it has had its “success.”

1. The FBI Law Enforcement Bulletin is a regular trade magazine for employees and agencies. The magazine generates news articles reporting on trends in the field, hot topics, and emerging issues that are pertinent to the staff and business operations of the agency. Each month, approximately 40,000 complimentary copies of the bulletin are distributed to police chiefs, sheriffs, National Academy graduates, libraries, and leading members of the agency. The first magazine issue was published in 1932 in the United States. The bulletin is now distributed to over 150 countries, is available online, and estimates a readership of approximately 200,000. Communication with author, 2008. Stacey Ivie and Natalie Nanasi, “The U Visa: An Effective Resource for Law Enforcement.” FBI Law Enforcement Bulletin 78 (2009): 10-16. [↩]
2. Stacey Ivie and Natalie Nanasi, “The U Visa: An Effective Resource for Law Enforcement.” FBI Law Enforcement Bulletin 78 (2009): 15. [↩]
3. See Dasgupta, Shamita Das, “Safety and Justice for All: Examining the Relationship Between the Women’s Anti-Violence Movement and the Criminal Legal System.” Ms. Foundation (2003); and Kim, Mimi, Morgan Bassichis, Felipe Hernandez, RJ Maccani, Guarav Jashnani, Bench, and Jenna Peters-Golden, “A World Without Walls: Stopping Harm and Abolishing the Prison Industrial Complex.” The Abolitionist (2010). [↩]
4. For a range of discussions on innocence in legal discourse, settler colonialism, community formations, and the state, see Mary Louise Fellows and Sherene Razack, “The Race to Innocence: Confronting Hierarchical Relations among Women,” Journal of Gender, Race and Justice 1 (1998): 335-52; Sherene Razack, “Domestic Violence as Gender Persecution: Policing the Borders of Nation, Race, and Gender,” Canadian Journal of Women and the Law 8 (1995): 45-88; and Audra Simpson, “On Ethnographic Refusal: Indigeneity, ‘Voice’ and Colonial Citizenship,” Junctures: The Journal for Thematic Dialogue 9 (2007): 191-215. [↩]
5. H.R. 463, 113th Congress, 1st Session. [↩]
6. Press release, “Black Introduces U Visa Reform Act,” 5 Feb. 2013. Available at http://black.house.gov/press-release/black-introduces-u-visa-reform-act. [↩]
7. See http://www.youtube.com/watch?v=OlvcUztEDno&feature=youtu.be. [↩]
8. See: Reddy, Chandan, “Asian Diasporas, Neoliberalism, and Family,” Social Text 23 (2005): 101-120; Reddy, Chandan. Freedom With Violence. Durham: Duke University Press, 2011. [↩]
9. See: Volpp, Leti, “The citizen and the terrorist,” Critical Race Studies 49 (5) (2002): 1575-1600; Naber, Nadine, “‘Look, Mohammed the Terrorist Is Coming!’ Cultural Racism, Nation-Based Racism, and the Intersectionality of Oppressions after 9/11,” The Scholar and Feminist Online 6.3 (2008), available at https://sfonline.barnard.edu/immigration/naber_01.htm. [↩]