Multi-American | How immigrants are redefining 'American' in Southern California

When immigrants are crime victims, how much does legal status matter?

Photo by Grant Slater/KPCC

As the scandal surrounding Miramonte Elementary School unfolds, with the school staff being replaced after two teachers were accused of committing lewd acts against children, parents have been drawing together. Some have already sought legal counsel.

But concerns have been brought up as to whether all families in this South Los Angeles community may feel safe coming forward. The neighborhood in which the school sits is one whose demographics have changed over the years, and is now home to many immigrants from Latin America. In a neighborhood that was once primarily black, the student body is now 98 percent Latino, according to the school website. More than half the students are English learners.

As families come forward, some parents have raised questions as to whether everyone who fears their child may have been victimized will speak up, fearing going public with their immigration status. But in cases like these, even parents who lack legal immigration status have certain rights. Telemundo legal expert and immigration attorney Alma Rosa Nieto explains in this Q&A.

M-A: In a situation like this one, what might the challenges be for parents who lack legal status? Is a fear of being turned in to immigration authorities a genuine concern, or do they have a right to report a crime against their child without worrying about being turned in? 

Nieto: According to LAPD Special Order 40 that states “Officers shall not initiate police action with the objective of discovering the alien status of a person. Officers shall not arrest nor book persons for violation of title 8, section 1325 of the United States Immigration code (Illegal Entry),” a person does have the right to report a crime against their child without worrying about being turned in.

The Los Angeles Police Department does not ask for the immigration status of the victim or their family. Moreover, Los Angeles City was declared a “Sanctuary City” by Mayor Antonio Villaraigosa, which protects immigrants from being asked about their status if they report a crime. However, the Los Angeles Sheriff’s Department* (and other departments within Southern California) does support Secure Communities, and may ask for your immigration status. In this case, it would be best to first seek immigration legal advice.

M-A: Some parents are already filing lawsuits. Do parents who don't have legal immigration status in the U.S. have the right to take legal action as well? If they do, are there risks?

Nieto: In the United States, anyone, regardless of immigration status, can file a civil lawsuit against a person or a district. In this case specifically, the civil suit would be about damages therefore, the immigration status is a non-issue and they may not be asked about immigration status.

However, if it is a personal injury case, such as if the person was injured at work and they lost wages, immigration status may be brought up only to determine the exact amount of money that was lost because of that injury. For example, if a person that is an undocumented immigrant from Mexico were to have an injury at work and lost two weeks of pay because of it, the attorney may argue that the wages lost is equal to as much as that person may be paid for that labor in Mexico. However, being an undocumented immigrant does not bar you from filing or receiving compensation in a civil lawsuit.

M-A: What, if any, kind of protection do families like these have under the law?

Nieto: For undocumented families that have been victims of these crimes and have cooperated with police, there is the U-Visa, which would grant protection and a special visa that would grant them legal status in the United States. The requirement for a U-Visa are as follows:

i. “The applicant must have suffered substantial physical or mental abuse due to a criminal activity in at least one of the following categories: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage situations, peonage, false imprisonment, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.

ii. The victim can assist government officials in learning more about the crime including investigation and/or prosecution of the individual(s) that committed the crime and is willing to work with local law enforcement.

iii. The crime must have occurred in the United States or in a U.S. territory, or violated U.S. law.”

If the victim is a minor child and undocumented, they would also able to file for their parents and unmarried siblings under the age of 18. This would mean that the whole family would be protected under the law. If the victim is a minor U.S. citizen child, the parents can apply for the U-Visa and the siblings of the victim would be considered qualifying family members.

Only 10,000 visas are granted a year, however, if the cap has been reached the applicant will be placed on a waiting list and will still be able to work.The U-Visa status only lasts four years but by the third year a person can adjust their status and become permanent residents.

Even if you have a deportation order, you are still allowed to apply for the U-Visa. You do need to ask for a waiver if there are any grounds of inadmissibility (i.e. deportation, entry without inspection,etc).

M-A: What are the outreach challenges? Who should be working to get the message out to these families that they have rights if their children have been abused, and how to get the message to them?

Nieto: The immigrant and Latino communities fear law enforcement, which deters victims of injustice from coming forward. While the U-Visa and Special Order 40 are designed to encourage people to come out of the shadows to report victimization, implementation of Secure Communities by the Sheriff’s Department and Immigration and Customs Enforcement continue to fuel the community’s distrust of law enforcement.

Moreover, there is a general misunderstanding and lack of knowledge related to the rights an undocumented person has within the United States. People tend to assume that because the person does not have legal status that they have no standing in terms of the law but that is far from the truth. If you are a living, breathing person in the United States, you are entitled to basic civil rights according to our United States Constitution.

In the past, law enforcement, U.S. Citizenship and Immigration Services, community organizations as well as the Spanish speaking media have educated the community on their right to pursue a U-Visa if they or their minor children have been victims of violent crimes.

Individuals who come into contact with these victims (i.e. social workers and psychologists) should be educated on the rights of these people, so they may in turn share that information and help empower victims of crimes regardless of their immigration status.

*Miramonte Elementary School lies in unincorporated L.A. County territory, meaning the area is patrolled by the Sheriff's Department, which is investigating.