United States District Court, D. Oregon
MARIA DEL CARMEN MEDINA TOVAR and ADRIAN ALONSO MARTINEZ, Plaintiffs,
LAURA B. ZUCHOWSKI, Director, Vermont Service Center, United States Citizenship and Immigration Services; JOHN F. KELLY, Secretary, Department of Homeland Security; and JEFFERSON B. SESSIONS, III, United States Attorney General, Defendants.
JAMES SMITH NICOLE HOPE NELSON Nelson Smith LLP, Attorneys
J. WILLIAMS United States Attorney
L. BROWN Assistant United States Attorney, Attorneys for
OPINION AND ORDER
J. BROWN, United States Senior District Judge
matter comes before the Court on the Motion (#12) for Summary
Judgment filed by Defendants Laura B. Zuchowski, John F.
Kelly, and Jefferson B. Sessions III and the Motion (#15) for
Summary Judgment filed by Plaintiffs Maria del Carmen Medina
Tovar and Adrian Alonso Martinez.
reasons that follow, the Court GRANTS
Defendants' Motion for Summary Judgment and
DENIES Plaintiffs' Motion for Summary
Judgment. Accordingly, the Court DISMISSES
this matter with prejudice.
U Visa Status
created a nonimmigrant visa status (referred to as U visa
status) as part of the Victims of Trafficking and Violence
Protection Action of 2000, Title V, Pub. L. No. 106-386, 114
Stat. 1464, 1518-37 (titled Battered Immigrant Women
Protection Act of 2000). This U visa status is for noncitizen
victims of a crime who have suffered substantial mental or
physical abuse and who assist law enforcement in the
investigation or prosecution of the criminal activity.
Section 1513 of the legislation provides:
The purpose of this section is to create a new nonimmigrant
visa classification that will strengthen the ability of law
enforcement agencies to detect, investigate, and prosecute
cases of domestic violence, sexual assault, trafficking of
aliens, and other crimes described in section
101(a)(15)(U)(iii) of the Immigration and Nationality Act
committed against aliens, while offering protection to
victims of such offenses in keeping with humanitarian
interests of the United States.
114 Stat. at 1533. This legislation was codified as part of
the Immigration and Nationality Act (INA), United States
Code, Title 8. The U visa statutory provision is found at 8
U.S.C. § 1101(a)(15)(U)(I) (also referred to as the U-1
nonimmigrant visa statute). The United States Citizenship and
Immigration Services (the Agency) promulgates regulations
related to U visa status.
obtain U visa status a noncitizen victim files a petition
(Form I-918) with the Agency. 8 C.F.R. § 214.14(c)(1).
The noncitizen bears the burden to establish eligibility for
U visa status. 8 C.F.R. § 214.14(c)(4).
visa status is approved by the Agency, that status is valid
for four years. 8 C.F.R. § 214.14(g). After maintaining
U visa status for three years, the holder may apply for
lawful permanent-resident status. 8 U.S.C. § 1255(m); 8
C.F.R. § 245.14(k).
U.S.C. §1101(a)(15)(U)(ii) also permits a noncitizen
victim who is 21 years of age or older and is the holder of a
U visa to petition for derivative U visa status on behalf of
a spouse and/or children who are “accompanying, or
following to join” the victim.
following regulations are also applicable to this dispute:
C.F.R. § 214.14(f)(1) provides: “An alien who has
petitioned for or has been granted U-1 nonimmigrant status
(i.e., principal alien) may petition for the
admission of a qualifying family member . . . if accompanying
or following to join such principal alien.”
C.F.R. § 214.14(f)(4) provides: “The relationship
between the U-1 principal alien and the qualifying family
member must exist at the time Form I-918 was filed, and the
relationship must continue to exist at the time Form I-918,
Supplement A is adjudicated, and at the time of the
qualifying family member's subsequent admission to the
United States.” Exceptions apply when the person
applying is under 21 and has an unmarried sibling under 18 or
for children of the person submitting the petition.
See 8 C.F.R. § 214.14(f)(4)(I) and (ii).
following material facts are taken from the parties'
submissions in support of their Motions and are undisputed
unless otherwise noted.
Medina Tovar was born in Mexico in 1992 and came to the
United States when she was six years old. In 2004 she was the
victim of a serious crime and suffered substantial physical
and mental abuse at the age of 12 while living with her
family in Seaside, Oregon.
14, 2013, Medina Tovar filed a petition (Form I-918) with the
Agency to obtain U visa status because she had been the
victim of a crime and she had cooperated in the
investigation. On February 26, 2014, the Agency advised Media
Tovar that she “appeared” to be eligible for U
visa status, but the statutory cap for such visas had been
met for that fiscal year. Medina Tovar, therefore, was placed
on a waiting list for approval. Medina Tovar was not married
at the time that she applied for U visa status.
September 21, 2015, Medina Tovar married Plaintiff Alonso
Martinez in Hillsboro, Oregon. Alonso ...