In Re Saida Lizeth Nunez Ramirez

Filing 3

REPORT AND RECOMMENDATION.(Signed by Magistrate Judge Peter E. Ormsby) Parties notified.(bgarces, 7)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

IN RE CERTIFICATION FORM
FOR U VISA FOR MOVANT
SAIDA LIZETH NUNEZ-RAMIREZ

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MISCELLANEOUS ACTION NO.
M-13-746

REPORT AND RECOMMENDATION
Movant Saida Lizeth Nunez-Ramirez (“Movant” or “Ms. Nunez”), represented by
immigration counsel, has submitted a letter requesting that the District Court provide a
certification in support of her U visa application pursuant to 8 U.S.C. § 1101(a)(15)(U).
Specifically, Movant requests that the Court certify that she was “helpful” in the prosecution of
criminal activity in United States v. Julio Enrique Santos, 7:09-cr-1358, a case that was closed
about three years before Movant submitted her request for a U visa certification. Movant was
one of three material witnesses held in custody at the Government’s request in connection with
criminal charges brought against Defendant Julio Enrique Santos for harboring undocumented
aliens (including Movant and numerous others). (See Docket Nos. 1, 3, 12.)1 Movant notes that
the certification is only one of the requirements for a U visa and that the Court would not be
making a final immigration determination. The District Court has referred this matter to the
undersigned.
After carefully considering Movant’s certification request in light of the record in United
States v. Santos, 7:09-cr-1358, the undersigned concludes that the District Court should decline

1

Unless otherwise noted, docket entry numbers refer to United States v. Julio Enrique
Santos, 7:09-cr-1358.

to exercise its discretion to provide the requested U visa certification. As discussed further
below, it is far from clear that Movant satisfies two key certification requirements: 1) that she
was the victim of qualified criminal activity; and 2) that she was helpful in the investigation or
prosecution of qualified criminal activity. Because the record is insufficient for the Court to
render a U visa certification, the undersigned recommends that the District Court decline
Movant’s request without prejudice to her ability to seek such a certification from an appropriate
investigating or prosecuting official.2
I. BACKGROUND3
On August 26, 2009, a federal alien smuggling task force received information from a
concerned citizen that a residence in Palmview, Texas, was being used to house undocumented
aliens. Federal agents and local police officers approached the residence a few days later and
encountered Defendant Julio Enrique Santos and 24 other undocumented aliens, including
Movant. The federal agents arrested Santos and filed a criminal complaint charging him with
harboring illegal aliens. According to the sworn complaint, Santos was the caretaker of a stash
house for aliens who had entered the United States illegally and were awaiting transportation to
Houston, Texas. Although Santos denied any involvement in alien smuggling, he admitted that
he was a member of the MS 13 gang. The task force officers found ledgers maintained by
Santos. The ledgers bore the notation “MS 13” and listed the names of the 24 undocumented

2

If Movant does seek such a certification, she should provide the proposed certifying
official with a copy of this report together with the District Court’s ruling.
3
The background facts are taken principally from the criminal complaint (Docket No. 1)
and the Presentence Investigation Report (Docket No. 29) in United States v. Julio Enrique
Santos, 7:09-cr-1358.

2

aliens found with Santos, as well as 114 other aliens who had previously been staged at the
residence.
Along with the criminal complaint, the Government filed an affidavit naming three of the
24 aliens as material witnesses. Movant was one of the material witnesses. According to the
Government’s summary in the criminal complaint, all three witnesses identified Santos as the
caretaker of the house who would bring them food and instruct them not to make noise.
Movant stated that she made arrangements with an alien smuggler to be transported to
Houston, Texas, for a fee of $2,400; she had paid $600 of the fee, with the remaining balance to
be paid upon her arrival in Houston. (See Docket No. 29, ¶ 14.) Movant illegally entered the
United States with the aid of the smuggler, and she was taken to the residence where she was
later found by federal task force officers. When Movant and the others arrived at the stash
house, Defendant Santos took down their names.

Movant “stated that SANTOS would

constantly tell the group of undocumented aliens to call their families and make them send
money for their smuggling fees.” (Docket No. 1.) Movant said that Santos told them that if they
ever got caught, they were not to tell immigration officials about him; otherwise, he would send
his MS 13 gang friends after them.
Movant and the other two material witnesses made an initial appearance in court, and all
three were appointed attorneys. Based on their lack of immigration status and the absence of
appropriate conditions of release, all three material witnesses were held without bond. (Docket
No. 8.) Movant’s appointed attorney filed a motion requesting that her testimony be taken by
deposition so that she could be released from custody. (Docket No. 11.) Before the material
witnesses were deposed, Defendant Santos pleaded guilty pursuant to a plea agreement with the
Government. The same day that Santos pleaded guilty, November 3, 2009, the Government
3

moved for the release of the material witnesses, noting that their “continued presence is no
longer requested.” (Docket No. 19.) The Court immediately granted the motion, ordering that
the Marshals release Movant and the other witnesses.

(Docket No. 20.)

The Marshals

presumably released Movant to the custody of immigration authorities.4
After accepting Santos’s guilty plea, the District Court directed the Probation Office to
prepare a Presentence Report (PSR). The PSR reflects the recommendation that Santos’s offense
level be enhanced because he harbored over 100 undocumented aliens (including the 24 in
Movant’s group as well as prior groups who had previously come through the same stash house).
The PSR did not recommend any sentencing enhancements based on Santos’s treatment of the
undocumented aliens.
On May 28, 2010, the District Court sentenced Santos to 25 months imprisonment, which
was on the low end of the sentencing guidelines range as determined by the Court. On June 14,
2010, the Court signed the judgment in Santos’s case. He did not appeal his conviction, which
thus became final fourteen days later on June 28, 2010. See FED. R. APP. P. 4(b)(1)(A).
Almost three years later, on May 6, 2013, Movant’s immigration counsel submitted the
pending request that the District Court sign a form “I-918 Supplement B, U Nonimmigrant
Status Certification.”
II. ANALYSIS
“Congress created the U nonimmigrant classification or U Visa in 2000 for victims of
serious crimes and some of their family members.” Torres-Tristan v. Holder, 656 F.3d 653, 656

4

It is unclear whether Movant remained in the United States or whether she was removed
and then later re-entered.

4

(7th Cir. 2011) (citing Pub. L. No. 106–386, 114 Stat. 1464 (2000); Fonseca–Sanchez v.
Gonzales, 484 F.3d 439, 442 n.4 (7th Cir. 2007)). The U visa was created as part of the Battered
Immigrant Women Protection Act of 2000 (BIWPA). See Pub. L. No. 106–386, 114 Stat. 1464
(2000). In regulations implementing the U visa provision, the Department of Homeland Security
(DHS) explained:
The purpose of the U nonimmigrant classification is to strengthen the ability of
law enforcement agencies to investigate and prosecute such crimes as domestic
violence, sexual assault, and trafficking in persons, while offering protection to
alien crime victims in keeping with the humanitarian interests of the United
States.
....
Alien victims may not have legal status and, therefore may be reluctant to help in
the investigation or prosecution of criminal activity for fear of removal from the
United States. In passing this legislation, Congress intended to strengthen the
ability of law enforcement agencies to investigate and prosecute cases of domestic
violence, sexual assault, trafficking of aliens and other crimes while offering
protection to victims of such crimes. See BIWPA, sec. 1513(a)(2)(A). Congress
also sought to encourage law enforcement officials to better serve immigrant
crime victims. Id.
Eligibility for “U” Nonimmigrant Status (Interim Rule), 72 Fed. Reg. 53014-15 (Sept. 17, 2007).
To qualify for U visa status, the Secretary of DHS must determine that an alien meets
several statutory requirements:
(I)

the alien has suffered substantial physical or mental abuse as a result of
having been a victim of criminal activity described in clause (iii)[8
U.S.C.A. § 1101(a)(15)(U)(iii)];

(II)

the alien . . . possesses information concerning criminal activity described
in clause (iii);

(III) the alien . . . has been helpful, is being helpful, or is likely to be helpful to
a Federal, State, or local law enforcement official, to a Federal, State, or
local prosecutor, to a Federal or State judge, to the Service, or to other
Federal, State, or local authorities investigating or prosecuting criminal
activity described in clause (iii); and

5

(IV) the criminal activity described in clause (iii) violated the laws of the
United States or occurred in the United States . . . .
8 U.S.C.A. § 1101(a)(15)(U)(i) (emphasis added). The relevant “criminal activity” is
defined as follows:
(iii) the criminal activity referred to in this clause is that involving one or more of
the following or any similar activity in violation of Federal, State, or local
criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault;
abusive sexual contact; prostitution; sexual exploitation; stalking; female genital
mutilation; being held hostage; peonage; involuntary servitude; slave trade;
kidnapping; abduction; unlawful criminal restraint; false imprisonment;
blackmail; extortion; manslaughter; murder; felonious assault; witness tampering;
obstruction of justice; perjury; fraud in foreign labor contracting (as defined in
section 1351 of Title 18); or attempt, conspiracy, or solicitation to commit any of
the above mentioned crimes[.]
8 U.S.C.A. § 1101(a)(15)(U)(iii).
An alien applying for a U visa must submit the following certification:
The petition filed by an alien under section 1101(a)(15)(U)(i) of this title shall
contain a certification from a Federal, State, or local law enforcement official,
prosecutor, judge, or other Federal, State, or local authority investigating criminal
activity described in section 1101(a)(15)(U)(iii) of this title. . . . This certification
shall state that the alien “has been helpful, is being helpful, or is likely to be
helpful” in the investigation or prosecution of criminal activity described in
section 1101(a)(15)(U)(iii) of this title.
8 U.S.C.A. § 1184(p)(1) (emphasis added). The regulations further describe the contents of the
required certification:
The certification must state that: the person signing the certificate is the head of
the certifying agency, or any person(s) in a supervisory role who has been
specifically designated by the head of the certifying agency to issue U
nonimmigrant status certifications on behalf of that agency, or is a Federal, State,
or local judge; the agency is a Federal, State, or local law enforcement agency, or
prosecutor, judge or other authority, that has responsibility for the detection,
investigation, prosecution, conviction, or sentencing of qualifying criminal
activity; the applicant has been a victim of qualifying criminal activity that the
certifying official’s agency is investigating or prosecuting; the petitioner
possesses information concerning the qualifying criminal activity of which he or
she has been a victim; the petitioner has been, is being, or is likely to be helpful to
6

an investigation or prosecution of that qualifying criminal activity; and the
qualifying criminal activity violated U.S. law, or occurred in the United States, its
territories, its possessions, Indian country, or at military installations abroad.
8 C.F.R. § 214.14(c)(2)(i).
As other courts have recognized, there is “dissonance” in the statute in that an alien may
seek a U visa certification from a “Federal . . . judge . . . investigating criminal activity
described” in § 1101(a)(15)(U)(iii). 8 U.S.C.A. § 1184(p)(1); see Agaton v. Hospitality &
Catering Servs., Inc., C.A. 11-1716, 2013 WL 1282454, at *3 (W.D. La. Mar. 28, 2013). Of
course, federal judges do not investigate criminal activity. Indeed, given that federal judges must
remain neutral and impartial in presiding over criminal cases, it is difficult to envision how an
alien could ever be “helpful to a Federal . . . judge” as required by the statute. 8 U.S.C. §
1101(a)(15)(U)(i)(III). Presumably, the statute should be construed to mean that a judge may
certify that an alien was “helpful” to the Government in its investigation or prosecution of
qualified criminal activity. See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (noting the wellestablished rule that a statute’s plain meaning controls unless it leads to absurd results); see also
Harris v. Runnels, 53 U.S. 79, 80 n.3 (1851) (the rule of strict statutory construction “does not
exclude the application of common sense to the terms made use of in the act in order to avoid
any absurdity, which the legislature ought not to be presumed to have intended”).
In attempting to reconcile the language of the statute with the role of judges, the
regulations explain:
USCIS is defining the term [“investigation or prosecution”] to include the
conviction and sentencing of the perpetrator because these extend from the
prosecution. Moreover, such inclusion is necessary to give effect to section
214(p)(1) of the INA, 8 U.S.C. § 1184(p)(1), which permits judges to sign
certifications on behalf of U nonimmigrant status applications. Judges neither
investigate crimes nor prosecute perpetrators. Therefore, USCIS believes that the
7

term “investigation or prosecution” should be interpreted broadly as in the AG
Guidelines.
72 Fed. Reg. 53014, 53020 (citations ommitted).
Whether or not this explanation adequately reconciles the language of the statute with the
role of judges,5 the regulations suggest that a federal judge’s involvement in U visa certifications
should be limited to circumstances in which the judge is (or has been) involved in the conviction
or sentencing of a defendant who engaged in qualifying criminal activity.6 See Agaton, 2013

5

The regulations do not explain how an alien could be said to be “helpful” to a judge in
connection with the conviction or sentencing of a defendant.
See 8 U.S.C. §
1101(a)(15)(U)(i)(III).
6
Otherwise, a federal judge would be making a non-binding certification outside the
context of any actual case, which may raise a more fundamental issue. “Article III of the
Constitution limits federal-court jurisdiction to ‘Cases’ and ‘Controversies.’” Massachusetts v.
E.P.A., 549 U.S. 497, 516 (2007); see also Whitmore v. Arkansas, 495 U.S. 149, 154-55 (1990)
(“Article III, of course, gives the federal courts jurisdiction over only ‘cases and controversies'
”); City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (“It goes without saying that those who
seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement
imposed by Article III of the Constitution by alleging an actual case or controversy.”). In light
of the constitutional requirement that there be a “justiciable ‘controversy,’” it is well-settled that
a federal court does not have the authority to render an “advisory opinion.” Massachusetts v.
E.P.A., 549 U.S. at 516; see also U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc.,
508 U.S. 439, 446 (1993) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)) (“The exercise
of judicial power under Art. III of the Constitution depends on the existence of a case or
controversy, and ‘a federal court [lacks] the power to render advisory opinions.’”); Boston
Firefighters Union Local 718 v. Boston Chapter NAACP, Inc., 468 U.S. 1206, 1210 (1984) (“But
such a ruling now-rendered in the absence of a present case or controversy in this proceedingwould amount to no more than an advisory opinion. The federal courts are forbidden by Article
III of the Constitution from giving advisory opinions.”). These principles call into question a
federal judge’s authority to issue a U visa certification, particularly where the judge is not
presiding over a criminal prosecution involving qualifying criminal activity. However, this issue
need not be explored further here in light of the undersigned’s recommendation that the District
Court decline to issue a U visa certification. See Skilling v. United States, 130 S. Ct. 2896,
2929-30 (2010) (noting that federal courts have been instructed to avoid, where possible,
constitutional difficulties in interpreting statutes) (citing Boos v. Barry, 485 U.S. 312, 330-31
(1988)).

8

WL 1282454, at *4 (holding that the regulations “do not allow certification by a federal judge
when that judge has no responsibilities regarding any pending investigation or prosecution of the
qualifying crime”); but see Villegas v. Metro. Gov't of Nashville, No. 3:09–219, 2012 WL
4329034, at *5 (M.D. Tenn. 2012) (granting a U visa certification in the context of a civil case
based on the finding that the alien had information that would be helpful to a future investigation
where the alien “made a prima facie showing that she was a victim of the qualifying potential
criminal activity”); Garcia v. Audubon Cmtys. Mgmt., Civil Action No. 08–1291, 2008 WL
1774584, at *2–4 (E.D. La. 2008) (same).
Assuming that a federal judge may issue a U visa certification in an appropriate case, this
does not mean that the judge is required to do so. As the Fifth Circuit has emphasized, it is
“abundantly clear” from the language of the statute that the decision whether to issue such a
“certification is a discretionary one.” Ordonez Orosco v. Napolitano, 598 F.3d 222, 226 (5th
Cir. 2010).
Here, Movant requests that the District Court provide a U visa certification based on her
status as a material witness in an alien smuggling case that became final over three years ago,
United States v. Julio Enrique Santos, 7:09-cr-1358. Movant suggests that she was helpful in the
prosecution of qualifying criminal activity; specifically, she claims that she was a victim of
trafficking and false imprisonment.

There are two main issues in considering Movant’s

certification request: 1) whether she can be considered the victim of qualified criminal activity;
and 2) whether she was in fact helpful to the Government’s investigation or prosecution of
qualified criminal activity in the Santos case.

9

A.

QUALIFYING CRIMINAL ACTIVITY
Movant requests that the District Court certify that she was a victim of trafficking, false

imprisonment, and conspiracy to commit those crimes, which are all included within the
statutory definition of “criminal activity” for purposes of U visa certification.7 8 U.S.C.A. §
1101(a)(15)(U)(iii). She indicates that these crimes were committed by Defendant Julio Enrique
Santos in connection with events for which she was held as a material witness. However, it is
unclear from the record of the Santos case whether Movant was the victim of either trafficking or
false imprisonment.
1.

Trafficking

Movant appears to contend that the harboring aliens charge brought by the Government
against Mr. Santos is equivalent to the crime of “trafficking” enumerated in the statute. Mr.
Santos was indicted on charges of conspiring to harbor and harboring undocumented aliens at a
residence in Palmview, Texas, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), (v)(I). (Docket No.
12.) In addition to harboring, § 1324(a)(1)(A) also addresses the related crimes of smuggling
and transporting undocumented aliens.
The crimes of smuggling, transporting, and harboring undocumented aliens are not
specifically listed as the type of “criminal activity” for which a U visa certification may be
sought. 8 U.S.C.A. § 1101(a)(15)(U)(iii). This omission is clearly not dispositive since the
statute states that relevant “criminal activity” includes the listed crimes “or any similar activity in

7

Attached to her letter motion, Movant provided a completed “U Nonimmigrant Status
Certification” for signature by the District Court. Movant marked the three above-named crimes
as the “criminal acts” that form the basis for the U visa certification.

10

violation of Federal, State, or local criminal law.” Id. Still, it seems unlikely that Congress
intended that alien smuggling, transporting, or harboring—without more—would satisfy the
requirements for U visa status.
To begin with, as DHS noted in promulgating regulations to implement the U visa
statute: “The purpose of the U nonimmigrant classification is to strengthen the ability of law
enforcement agencies to investigate and prosecute such crimes as domestic violence, sexual
assault, and trafficking in persons, while offering protection to alien crime victims . . . .” 72 Fed.
Reg. 53014. The U visa provision thus focuses on crimes that victimize undocumented aliens.
“Trafficking” clearly falls within the category of crimes in which undocumented aliens
may often be victims; “trafficking” crimes proscribe peonage, slavery, involuntary servitude,
forced labor, and sex trafficking. See Victims of Trafficking Protection Act, 18 U.S.C. § 1581 et
seq. For example, federal law makes “sex trafficking of children” a crime where “means of
force, threats of force, fraud, coercion . . . , or any combination of such means will be used to
cause the person to engage in a commercial sex act.” 18 U.S.C. § 1591(a)(2).
In contrast, the crimes of alien smuggling, transport, and harboring do not necessarily—
or typically—involve circumstances in which the undocumented alien may be considered a
victim; to the contrary, in the vast majority of cases involving alien smuggling, transporting, or
harboring, the undocumented aliens are voluntary participants in the crime by seeking the
services of smugglers who will assist them in entering the United States illegally and traveling

11

beyond the border area to locations where they are less likely to be apprehended by immigration
enforcement officers.8
In addition to the fact that alien smuggling crimes do not necessarily involve alien
victims, Congress’s failure to specify these particular crimes in the U visa statute is telling.
Alien smuggling, transporting, and harboring are perhaps the most obvious types of crimes
involving aliens yet Congress did not include them in its long list of specific crimes that are the
type of “criminal activity” for which a U visa may be sought. While the statute covers “any
similar activity” in addition to the enumerated crimes, it seems unlikely that Congress considered
alien smuggling or harboring to be similar to the listed crimes involving alien victims.
In any event, the regulations make this a moot point. Recognizing that a co-participant in
criminal activity should not be accorded “victim” status, the regulations state: “A person who is
culpable for the qualifying criminal activity being investigated or prosecuted is excluded from
being recognized as a victim of qualifying criminal activity.” 8 C.F.R. § 214.14(a)(14)(iii). This
rule excludes aliens, such as Movant, who have illegally entered the United States (with the help
of smugglers) from being considered “victims” of alien smuggling. Because Movant agreed to
pay a smuggler to assist her in entering the United States illegally and transporting her to
Houston, Movant was not a “victim” of “qualifying criminal activity” to the extent Mr. Santos’s

8

Of course, there are cases in which alien smuggling is combined with other crimes that
victimize the aliens, such as trafficking. For example, criminal cases have been filed in this
Court involving young women who were smuggled in the United States illegally and then forced
into involuntary servitude and prostitution. Similarly, there are cases in which aliens who have
made arrangements to be smuggled into the United States become the victims of crimes such as
sexual assault at the hands of their smugglers. But such cases involve crimes in addition to alien
smuggling.

12

criminal activity consisted of harboring aliens. See United States v. Biao, No. 98cr2812-BTM,
2011 WL 607087, at *1 (S.D. Cal. Feb. 11, 2011) (refusing to certify U visa for applicants who
“sought certification based on their appearance as witnesses in an alien-smuggling case” where
they had “presumably agreed to be smuggled into the United States” and thus could not show
that they “suffered direct and proximate harm as a result of” the criminal activity) (citing 8
C.F.R. § 214.14(a)).
Perhaps recognizing this, Movant suggests that Mr. Santos’s criminal activity involved
more that alien smuggling or harboring. Movant’s letter motion states: “In August of 2009, Ms.
Nunez Ramirez was trafficked into the United States by Defendant Julio Enrique Santos’ family
member who solicited her in her native country of Honduras.” (Emphasis added.) But the
information in this unsworn statement appears nowhere in the record of the Santos case. In fact,
it is contrary to the information provided to the District Court in the PSR, which states: “Liceth
Nunez stated that she made arrangements with an unknown person in Reynosa, Tamaulipas,
Mexico, to be smuggled to Houston, Texas, for a fee of $2,400.” (Docket No. 29, ¶ 14.) There
is nothing in the record of the Santos case to support the assertion that Movant was “trafficked”
into the United States.9
If there is information that supports Movant’s characterization of what happened, it
would be known by the investigating agents and/or the prosecutor, not the Court. The Court
lacks a sufficient basis upon which to certify that Movant was the victim of trafficking.

9

Moreover, although Movant’s letter uses the term “trafficked,” it does not explain how
the conduct of Defendant Santos or his family amounted to trafficking, as opposed to alien
smuggling.

13

2.

False Imprisonment

Movant also claims that she was the victim of false imprisonment, which is likewise one
of the types of “criminal activity” specified in the statute. 8 U.S.C.A. § 1101(a)(15)(U)(iii). In
support of this, Movant’s counsel states:
After being brought into the United Statees, Ms. Nunez Ramirez was held against
her will in a stash house near Palmview, Texas by the Defendant. During this
time, the Defendant threatened her and other victims with gang related violence
due to his membership in MS-13. The Defendant expressed to Ms. Nunez
Ramirez that she would be held until her family paid additional money for her
safe release.
If true, this unsworn statement might support the proposition that Movant was the victim
of false imprisonment (or perhaps extortion or kidnapping).

As with Movant’s trafficking

allegation, however, this version of events is not entirely consistent with the record. According
to the sworn complaint filed at the time of Mr. Santos’s arrest, Movant told investigative agents
the following (in part):
According to NUNEZ, SANTOS would tell them not to get out of the residence
and not to make any noise. NUNEZ also stated that SANTOS would constantly
tell the group of undocumented aliens to call their families and make them send
the money for their smuggling fees. NUNEZ also claims that SANTOS threatened
them and told them that if they would ever get caught by immigration officials not
to provide any information about him. SANTOS told the group that if they talked,
he would send his MS 13 gang member friends after them.
(Docket No. 1.) Similarly, the PSR described Movant’s statements as follows:
Ms. Nunez indicated that the defendant instructed them not to leave the house or
make any noise and was very vulgar. She stated that he was always drinking and
would constantly tell them to call their families to send the money for their
smuggling fees. Ms. Nunez claimed that the defendant threatened them and told
them that if they were caught by immigration officials they were not to provide
any information about him. If they did talk, he threatened to send his fellow “MS
13” gang members after them.
(Docket No. 29, ¶ 14.)
14

In contrast to the description in her letter motion, the statements attributed to Movant in
the complaint and in the PSR suggest that Mr. Santos was demanding that the aliens in Movant’s
group pay their agreed-upon smuggling fee—not that he was holding them hostage based on
some new demand.10 Also, the contemporaneous statements reflected in the record suggest that
Santos’s threats were made in the context of telling the aliens not to identify him if they were
later apprehended by law enforcement officers. Although Movant now requests the Court to
certify that she was the victim of false imprisonment by Mr. Santos, there is no indication in the
record that Movant wanted to leave the stash house or that she was being held there against her
will.11 Santos was never charged with any crime other than harboring aliens, and neither the
Government nor the Probation Office suggested that his sentence should be enhanced based on

10

Movant had paid part of the fee, and she had agreed to pay the rest of the amount upon
arriving in Houston. In some cases filed in this Court, the facts show that aliens have been held
hostage in stash houses. In those situations, the smuggler or stash house caretaker typically calls
the aliens’ families and demands that additional money be paid (above the original agreed-upon
smuggling fee), threatening to kill or harm the aliens if their families do not comply. But this
does not appear to have happened in the Santos case. The Government never alleged that Santos
was holding the aliens hostage in this way. Santos’s statements seem to have been interpreted as
an attempt to motivate the aliens to pay the agreed-upon smuggling fee, rather than holding them
hostage based on new demands.
11
Aliens being harbored at stash houses are routinely told to remain quiet and stay out of
sight so that their presence in the residence is not noticed by neighbors or others (who may find it
suspicious and alert law enforcement authorities). Being staged at a stash house with someone
like Santos was no doubt unpleasant (to say the least), and Movant understandably would have
been anxious to continue her transportation northward. It is an unfortunate reality that those, like
Movant, who seek to enter the United States illegally often face a difficult and dangerous journey
(including crossing the Rio Grande River in tubes or makeshift rafts, walking long distances in
difficult weather conditions, hiding in cramped—and often unsanitary—stash houses, and being
transported in vehicles in unsafe conditions).

15

his mistreatment of Movant and the other aliens that he harbored. The PSR concluded that
“[t]here are no identifiable victims of the offense.”12 (Docket No. 29, ¶ 17.)
While it is possible that Movant was the victim of false imprisonment, the Court lacks
information from which to reach such a conclusion. Here again, that type of information would
be in the possession of the prosecutor or investigating agents. See Biao, 2011 WL 607087, at *1
(refusing to certify U visa where “the Court lacks information to determine whether the
remaining elements of 8 CFR § 214.14(c)(2)(i) are satisfied”).
B.

HELPFULNESS
Movant also asks the District Court to certify that she “‘has been helpful, is being helpful,

or is likely to be helpful’ in the investigation or prosecution of criminal activity.” See 8 U.S.C.A.
§ 1184(p)(1). It is unclear whether Movant contends that her status as a material witness alone
establishes her helpfulness or whether she is asserting that her level of cooperation shows that
she was “helpful” for purposes of U visa certification.
1.

Material Witness Status

It is doubtful that an alien’s status as a material witness is sufficient, standing alone, to
establish their helpfulness. As described by the Fifth Circuit: “The government, in its campaign
against the unlawful entry into the United States by foreign nationals, ha[s] deployed a practice
of detaining certain aliens as material witnesses for the criminal prosecution of those persons
charged with transporting them across the border.” Aguilar-Ayala v. Ruiz, 973 F.2d 411, 412

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The PSR noted that Movant and the other aliens were held in a “three-bedroom
residence,” which “had running water and was not locked from the outside. It was sanitary, but
messy.” (Docket No. 29, ¶ 15.)

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(5th Cir. 1992). In the McAllen Division alone, each year hundreds of undocumented aliens are
held as material witnesses at the request of the Government.13 These material witnesses have
entered the United States illegally, and they are typically apprehended under one of the following
scenarios: they are found traveling on foot while being led by a guide (either near the border
during their initial illegal entry or farther inland as they are attempting to circumvent a Border
Patrol checkpoint); they are found in a vehicle driven by a transporter (often involving some
attempt to conceal their presence in the vehicle); or—as in Movant’s case—they are found in a
stash house along with a caretaker (as they are awaiting transportation farther North).
Almost always, the “witness has been detained solely at the insistence of the
government.” Aguilar-Ayala, 973 F.2d at 420 (emphasis in original). The detention of material
witnesses is authorized by statute, which contemplates that they will be released once their
testimony is secured by a deposition:
If it appears from an affidavit filed by a party that the testimony of a person is
material in a criminal proceeding, and if it is shown that it may become
impracticable to secure the presence of the person by subpoena, a judicial officer
may order the arrest of the person and treat the person in accordance with the
provisions of section 3142 of this title. No material witness may be detained
because of inability to comply with any condition of release if the testimony of
such witness can adequately be secured by deposition, and if further detention is
not necessary to prevent a failure of justice. Release of a material witness may be
delayed for a reasonable period of time until the deposition of the witness can be
taken pursuant to the Federal Rules of Criminal Procedure.

13

Based on statistics obtained from the Clerk’s office, during the past year (from October
2012 through September 2013) the Government named over 1,400 material witnesses in cases
filed in the Southern District of Texas. Over 500 of those material witnesses were named in
cases filed in the McAllen Division.

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18 U.S.C. § 3144. Rule 15 provides that the court may, upon motion by a material witness, order
that the testimony of the witness be taken by deposition, and the court may discharge the witness
after the deposition has been taken. FED. R. CRIM. P. 15(a)(2).
Simply because an alien has been held as a material witness at the Government’s request
does not mean that the alien has been “helpful” in the investigation and prosecution of qualified
criminal activity. Material witnesses are typically held against their will, and they may or may
not cooperate fully in their initial statements to law enforcement or in their later deposition or
trial testimony.
2.

Movant’s Helpfulness

Movant’s letter describes her helpfulness as follows:
Subsequent to a raid of the stash house, Ms. Nunez Ramirez assisted in the
investigation and prosecution against the Defendant. She provided a statement to
investigating Border Patrol agents and participated in the Defendant’s trial as a
material witness. The Defendant was ultimately convicted of “Conspiracy to
harbor illegal aliens within the United States” and “Harboring illegal aliens with
the United States” and sentenced to imprisonment and fines . . .
Once again, this statement is not entirely consistent with the record.
It is true that Movant answered questions asked by Border Patrol agents (as reflected by
the sworn criminal complaint), and she was held as a material witness. However, her assertion
that she “participated in the Defendant’s trial as a material witness” is incorrect. There was no
trial because Defendant Santos pleaded guilty pursuant to a plea agreement. (Docket No. 18.)
Immediately after Defendant’s re-arraignment, the Government moved to release Movant and the

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other material witnesses for the reason that “their continued presence is no longer requested.”14
(Docket No. 19.)
Based on this record, the Court has no way of knowing whether Movant was indeed
helpful. It may well be true that her initial statement contributed to the Defendant’s decision to
plead guilty to the alien harboring charges, but those charges do not constitute qualified
“criminal activity” within the meaning of the U visa statute. 8 U.S.C.A. § 1101(a)(15)(U)(i)(IV),
(iii); see supra Part II.A.1. In addition, as discussed above, Movant cannot be considered a
“victim” in connection with those charges because she was culpable herself in making
arrangements with an alien smuggler and entering the United States illegally. See 8 C.F.R. §
214.14(a)(14)(iii).

The Court has no information—and there is nothing in the record to

suggest—that Movant was helpful in connection with any other alleged crimes by the Defendant
Santos, such as trafficking or false imprisonment.15

As the court noted in Biao, “[t]he

prosecutor, and not this Court, would possess information sufficient to make that determination.”
Biao, 2011 WL 607087, at *1.
In sum, the District Court should decline to exercise its discretion to certify that Movant
was helpful within the meaning of the U visa provision.

14

Although Movant’s court-appointed attorney had filed a motion to record her testimony
by deposition (so that she could be released prior to Defendant’s trial), the deposition became
unnecessary because Defendant Santos pleaded guilty. (Docket No. 11.)
15
Movant has not suggested that she is “likely to be helpful” in any future investigation
or prosecution, nor could she. There is no reason to believe that the Government would bring
any additional charges against Defendant Santos arising out of these events. In moving to release
Movant and the other material witnesses after Defendant Santos’s guilty plea, the Government
noted that “their continued presence is no longer requested.” (Docket No. 19.)

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III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the District Court decline
to exercise its discretion to sign Plaintiff’s proposed “U Nonimmigrant Status Certification, I918 Supplement B.”
NOTICE TO THE PARTIES
The Clerk shall send copies of this Report and Recommendation to counsel for Movant
and counsel for the Government (in United States v. Julio Enrique Santos, 7:09-cr-1358), who
have fourteen (14) days after receipt thereof to file written objections pursuant to 28 U.S.C. §
636(b)(1)(C) and Federal Rule of Civil Procedure 72(b). Failure to file timely written objections
shall bar an aggrieved party from receiving a de novo review by the District Court on an issue
covered in this Report and, except upon grounds of plain error, from attacking on appeal the
unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
DONE at McAllen, Texas on December 3, 2013.

___________________________________
Peter E. Ormsby
United States Magistrate Judge

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