Reforming a Visa to Snitch: The Case for Self-Petitioning

Abstract

Status quo immigration laws contain a little used provision to provide visas for undocumented persons who can serve as reliable informants and testify at trial for prosecutors. However, the visas are limited to 250 per year, and only a law enforcement agency may apply for the visa on behalf of the non‐citizen informant. A review of data suggests that the visa is under-utilized. Through research and interviews with non‐citizen informants, I show how federal prosecutors are more inclined to use and threaten non-citizen informants with deportation rather than the possibility of getting a real shot at the American dream through cooperation. In cases where prosecutors do promise the S-Visa to an informant, they often fail to deliver on their promise while placing the informant in dangerous situations. In cases where local law enforcement and prosecutors have applied for the S-Visa, Immigration and Customs Enforcement have acted unreasonably to deny the applications. Given the shortcomings of the current S-Visa process, I propose that a system of mandatory disclosure whereby all law enforcement agencies shall be required to disclose cooperation agreements with non-citizen informants and witnesses to the Secretary of DHS. Non-citizen CI who can demonstrated helpfulness to law enforcement efforts should have the right to self-petition for the S-Visa with the USCIS, and that the number of visas available should be subject to a floating cap, rather than an arbitrary one. The S-Visa should also be available retroactively, so that CIs who have cooperated with law enforcement efforts before the existence of the program can also self-petition to evade deportation or petition to come back to the country. Reforming the S-Visa process would reduce the level of distrust that immigrant communities have towards law enforcement and encourage vulnerable persons to come forward to work with law enforcement in the prosecution of crimes. It would also restore a fairness and justice to non-citizens who did their civic duty and got beaten with the stick of deportation, as opposed to the carrot they were promised.

Keywords: immigration law, immigration policy, criminal defense, S-Visa, snitch, terrorism, crime