Illinois DCFS blocks undocumented survivors of child abuse from applying for legal status, records show

A pink-and-blue hued sketch of a young woman in duplicate. On the left side she's smiling, on the right side she has a sad expression.

Illustration by Verónica Martínez

A 37-year-old Chicago woman sued the Illinois Department of Children and Family Services Feb. 15 for failing to certify her U visa application. The illustration is based on two photographs, one showing her weeks after arriving from Mexico at age 9 and another taken a year later, while enduring near-daily abuse from her grandfather.

Illinois’ child welfare agency has for years illegally blocked undocumented survivors of child abuse from seeking legal status through a special visa for crime victims, an Injustice Watch investigation has found.

Since 2019, state law has required the Illinois Department of Children and Family Services — as all law enforcement agencies in the state — to decide within 90 business days whether undocumented victims of certain crimes are eligible for the U visa. It is a visa program specifically set up as a tool for law enforcement to gain the trust of undocumented immigrants who may otherwise be reluctant to come forward.

But records show the DCFS has allowed the program to languish, as it has worked for more than four years to establish a process to review the applications, potentially denying hundreds of families their chance at legal status and dissuading others from coming forward.

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“They are defying state law, and it’s really frustrating,” said Sara Dady, a Rockford-based immigration attorney who filed a U visa certification request on behalf of a client earlier this year.

“So I have to tell my client that under the law, we should get a response within 90 business days, but this particular government agency has decided that they’re just not capable of following the law.”

DCFS Director Marc Smith declined to be interviewed, and his office did not respond to questions about why the agency has failed in its responsibility to develop a policy on U visa certification requests.

This is the second time Injustice Watch has reported how a law enforcement agency wrongfully blocked cooperating victims their chance to apply for the U visa. The Chicago Police Department routinely denied hundreds of certification requests, many without justification, according to an Injustice Watch investigation published in December.

That report prompted Illinois Attorney General Kwame Raoul’s civil rights division to open an investigation of CPD. In a statement issued through a spokesperson, the attorney general is now “in the process of looking into the matter” of the DCFS’ failures, as well.

After 4 years, no plan for U visas

Interviews with a half-dozen immigration lawyers and their clients and a review of more than a dozen pages of DCFS emails and correspondence reveal how the few undocumented immigrants who applied for the certifications were told their applications were not being considered at all.

One case involves a 37-year-old who was sexually abused by her grandfather for years when she was a preteen. She reported the abuse to a school social worker, who notified the DCFS, which substantiated her allegations after an investigation, records show.

The agency referred the case to the police, but her grandfather was later convicted in another abuse case in which she had no involvement — meaning the DCFS was the only law enforcement agency able to certify her U visa application.

The woman’s attorney, Carlos Becerra, sent the DCFS her certification request in November, records show. Three days later, he got this response: “We are currently developing a U visa policy for DCFS; therefore, we are unable to confirm the information you provided, nor are we able to provide a signed certification at this time,” wrote Rodrigo Remolina, who identified himself as a member of the “DCFS U Visa Unit.”

“Can you tell me approximately how long it will take to develop the policy?” Becerra asked.

“Unfortunately, I don’t have a date, but I can tell you we are working on it diligently,” Remolina said in late November. “The best I can say is that we are hopeful to have it up and running in 2023.”

But by mid-January, there wasn’t much progress, according to Remolina’s emails in another case. “Although we already have a dedicated email for U visa, we do not yet have any policy or even an established process to certify U visa requests,” he wrote to Dady’s office. “We are working on it and hope to have this service up and running in the next few months. Please check back with us later this summer.”

Becerra filed suit against the DCFS on behalf of the 37-year-old Chicago woman in Cook County Circuit Court on Feb. 15, alleging the DCFS violated provisions of the Voices Immigrant Communities Empowering Act, known as the VOICES Act, a 2019 state law requiring a swift process to consider U visa certifications.

“This is my last shot at legal status,” the woman told Injustice Watch in an interview. “I don’t want the system to fail me again.”

‘They need to get their act together’

Injustice Watch was unable to determine how many more survivors of child abuse and their families might be eligible to apply for a U visa and simply did not because of the DCFS’ failure to make that process available to them.

Most U visa certifications go through police and other local agencies, federal data shows. But it’s common for child protective services to be the only agency involved in a case, said Danielle Kalil, a professor at the University of Michigan Law School and the author of a recent article on the U visa and child protective services in different states.

“When you have a really extreme sexual abuse case or a really extreme physical abuse case, then traditional law enforcement is likely to get involved, but there are lot of cases where it stays with the child protective agency, and the investigation is mostly done in that context, and that’s who the family or the child is cooperating with, and so they would be the most appropiate agency to certify,” Kalil said.

A spokesperson for the DCFS said the agency had only received seven U visa certification requests since the VOICES Act took effect in January 2019 and certified one. DCFS officials refused to provide details regarding the one case the agency certified.

“That’s extremely low,” Kalil said.

By comparison, in New York City, home to about the same number of undocumented immigrants as Illinois, child protective services issued more than 234 U visa certifications since 2019, records show.

Kalil said the VOICES Act mirrors legislation in California and New York, which mandate state law enforcement agencies to quickly handle U visa certifications.

The laws give child welfare agencies the discretion to decide whether they will certify U visas, but “you don’t get to decide not to review it at all,” she said.

The longer the DCFS takes to comply with the VOICES Act, the longer potential applicants will have to wait in line for a U visa, Kalil said.

The federal government only awards up to 10,000 U visas per year, and the applicant backlog topped 188,000 as of September. That means it could take more than a decade for someone who applied for a U visa this year to get it, Kalil said.

By preventing undocumented victims from applying for the U visa, the DCFS could dissuade others from coming forward, said Sarah Diaz, co-author of the VOICES Act and associate director of the Center for the Human Rights of Children at the Loyola University Chicago School of Law. “It makes children and their families remain in the shadows,” Diaz said.

Fred Tsao, senior policy counsel at the Illinois Coalition for Immigrant and Refugee Rights, said it was “disturbing” for the DCFS to “outright disregard” the VOICES Act. “Their continued resistance to even just issuing a policy is an invitation to a lawsuit,” Tsao said.

“They need to get their act together.”

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