Today, the Department of Justice moved to intervene in support of a lawsuit brought by local law enforcement officials challenging a Colorado law (HB21-1060). According to the government’s intervention motion, Colorado’s HB21-1060 interferes with public safety by distorting the process by which crime victims may temporarily remain in the country to assist with the prosecution of the offenses committed against them.
“Colorado’s law distorting the U-Visa process is deeply unfair to qualified U-Visa applicants who want to help law enforcement secure the safety of American communities,” said Associate Attorney General Stanley Woodward. “Congress created a scheme to incentivize cooperation with law enforcement while relying on local official discretion to ensure that only deserving applicants receive U-Visas. But Colorado is favoring the unhelpful alien over the crime victim who helps promote public safety and order. Federal law does not tolerate that backwards policy.”
U nonimmigrant visas (U-Visas) provide certain aliens who have been victims of serious crimes with temporary authorization to remain in our Nation to aid in the prosecution of criminal activity. To be eligible, among other requirements, an alien must submit an official certification from an appropriate law enforcement official stating that the alien has been, is, or likely will be helpful in the investigation or prosecution. Because only 10,000 U-Visas are available per year, the application process is highly competitive. But HB21-1060 skews that process. It requires officials to certify helpfulness even when an alien has not been, is not, and will not likely be helpful so long as the alien has not failed or refused to provide help reasonably requested. HB21-1060 also forbids certifying officials from considering relevant criteria, such as whether an alien lacks information about the criminal activity. And by eliminating certifying official discretion, HB21-1060 removes an important threshold check that ensures U-Visas go to only worthy applicants. Taken together, these Colorado requirements could force a Colorado official to provide the required certification even when an alien is not helpful, does not even possess information that could be helpful, and has engaged in separate conduct (such as known involvement in other serious criminal activity) that would warrant a discretionary refusal to certify.
As the proposed complaint-in-intervention explains, HB21-1060 is contrary to the U-Visa regime Congress enacted and is thus preempted under the Supremacy Clause.
Today’s action to intervene and support local law enforcement’s suit against Colorado demonstrates President Trump’s commitment to support crime victims and our Nation’s law enforcement officers, who work tirelessly to keep American communities safe. Laws that have the opposite effect and flout the judgment of Congress cannot stand.
