*VAWA Confidentiality and Discovery Cases (October 18, 2022)

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Walsh v. Unforgettable Coatings, Inc. (August 23, 2022):

Fair Labor Standards Act (FLSA) action where the Court found that although Plaintiff has demonstrated good cause to limit the deposition of the Department of Labor’s Regional Coordinator for Workplace Crimes, defendants have the right to explore inconsistencies with plaintiff’s statements in regard to immigration applications on a limited basis. The Court found that the deposition alone would not cause intimidation.

i. “[…] Defendants may not ask […] about [*19]  the immigration status or U visa applications of any specific individual or the identity of any individual to whom she may have helped provide an immigration benefit. Defendants may, however, ask her generally whether she helped provide immigration benefits to individuals involved in the Department of Labor’s investigation into Defendant’s”

Guillen v. B.J.C.R. LLC (March 31, 2022):

In a motion to compel production of plaintiff’s immigration records, the Court found the U Visa information was relevant to plaintiff’s motive and potentially probative of fraud because plaintiff appeared to acknowledge the relevance of the documents as she agreed to request them from USCIS and produce them subject to a tailored protective order; Defendant’s motion to compel was denied because the court did not have authority under 5 U.S.C.S. § 552(a)(4)(B), and defendants did not cite to any, to order USCIS to appear and answer defendants’; argument that the U Visa documents might not have been properly withheld in a civil sexual harassment and discrimination action to which USCIS was not a party; [3]-Plaintiff’s motion for protective order was denied as moot because plaintiff was not in possession of the U Visa documents, and so there was nothing to compel.

The documents requested to USCIS about U-visa were withheld under VAWA
Confidentiality protections:
i. “[…] The amended supplemental responses state that the U Visa
application documents were withheld by USCIS under a claimed statutory
exemption to disclosure, and therefore, could not be produced.” Id. at 11.

Molnar v. Margaret W. Wong Assocs. Co. L.P.A. (April 22, 2021):

The Court of Appeals found that in cases where the victim obtained the U visa and permanent resident status because of egregious legal malpractice committed by the victims’ former attorneys, defendants were entitled to obtain that information in order to prepare a defense. The Court observed that at the time the trial court ruled on plaintiffs’ motion for protective order, plaintiffs had been granted both U nonimmigrant and permanent-resident status, and any possible in terrorem effect due to the release of the U visa applications would be muted.

U.S. Equal Employment Opportunity Commission v. Sol Mexican Grill LLC (June 11, 2019):

The Court found that Defendants’ Reply and attached exhibit contain improper evidence of what was said and done during the EEOC’s conciliation with Defendants. By statute, such information cannot be used as evidence in this lawsuit. Defendants’ Reply in Support of its partial Motion to Dismiss remains sealed at this point.

Memorandum on People v. Alvarez Alvarez (March 15, 2019):

The decision did not discuss or point out how the defendant knew the victim had applied for a U visa. The decision held that the exclusion of U visa evidence was constitutional and within the court’s discretion. However, VAWA confidentiality is not discussed or presented as an argument before the court.

Washington v. Horning Bros. LLC (May 14, 2018):

The Court granted the Plaintiffs- Intervenors’ request for a protective order prohibiting discovery of their U visa immigration status. The Court weighed Plaintiffs-Intervenor’s fears for themselves and others of possible detention, removal, criminal prosecution, and job loss if forced to disclose U visa information. The Court held that the “[…] chilling effect, public policy concerns, and Plaintiffs-Intervenors’ fears outweigh any alleged probative value of possible exaggeration.” The District Court considered the Ninth Circuit’s preference for the impermissibility of immigration status information.

Diaz Silvas v. Horning Brothers LLC (May 14, 2018):

Protective order barring U visa discovery granted.

Cazorla v. Koch Foods of Mississippi LLC Order on U-Visa Discovery (March 20, 2018):

In an employment action, discovery of U visa case file was limited because the court was concerned that full discovery might intimidate individual claimants, compromise the U visa program, and law enforcement efforts more broadly. The Fifth Circuit directed the district court to craft an approach to discovery that ensures identifying information about individual victims was not revealed. Note: This type of anonymity may not be possible in a criminal prosecution or family court matter.

Cazorla v. Koch Foods of Mississippi REVISED (February 23, 2017):

In an employment action, discovery of U visa case file was limited because the court was concerned that full discovery might intimidate individual claimants, compromise the U visa program, and law enforcement efforts more broadly. The Fifth Circuit directed the district court to craft an approach to discovery that ensures identifying information about individual victims was not revealed. Note: This type of anonymity may not be possible in a criminal prosecution or family court matter.

Cazorla v. Koch Foods of Mississippi (September 27, 2016):

In an employment action, discovery of U visa case file was limited because the court was concerned that full discovery might intimidate individual claimants, compromise the U visa program, and law enforcement efforts more broadly. The Fifth Circuit directed the district court to craft an approach to discovery that ensures identifying information about individual victims was not revealed. Note: This type of anonymity may not be possible in a criminal prosecution or family court matter.

Guardado v. State of Maryland (October 14, 2015):

Holding that the trial judge properly limited the scope of the cross-examination of the victim about her immigration status where the “defense offered no evidence that [the victim] lacked stable immigration status, that she could be eligible for some sort of favorable immigration treatment as a crime victim, or, if it exists, that she was aware of the program at the time she identified [the defendant] as her assailant.”

Briggs v. Hedgpeth (October 7, 2014):

Finding that it was erroneous to preclude the defense from asking about U visa benefits that were offered to the
victim, but also found that it was harmless error because there was substantial evidence of the crime.

People v. AlvarezAlvarez (May 7, 2014):

(Cal. Ct. App. May 7, 2014), review denied (July 16, 2014). Finding that the trial court was well within its discretion to exclude reference to the U visa and that the defendant had other opportunity to question the credibility of the witness.

State of Maine v. Marroquin-Aldana (March 25, 2014):

The Supreme Judicial Court of Maine found that the lower court did not err in denying the defendant access to the victim’s entire immigration file. This Court found it sufficient that U visa certification was provided in discovery and that the defendant had the opportunity to cross-examine the victim and call credibility into question. It also noted the heightened protections given to “documents filed with immigration authorities pursuant to federal law.”

State of Arizona v. Buccheri-Bianca (October 30, 2013):

(Ariz. Ct. App. 2013), review denied (Feb. 11, 2014). Holding that the trial court did not err in excluding the immigration status of the victims because it found that the possible grant of a U visa was not the motivation for the disclosure of the crime and therefore, was irrelevant.

Demaj v. Sakaj (March 18, 2013):

The case found that seeking VAWA confidentiality-protected information through custody case discovery is barred by federal statute, and VAWA confidentiality applies even when the victim disclosed that their crime victim-related immigration case was approved.

Briggs v. Hedgpeth Order Denying Writ of Habeus Corpus (January 22, 2013):

Finding that it was erroneous to preclude the defense from asking about U visa benefits that were offered to the victim, but also found that it was harmless error because there was substantial evidence of the crime.

Camayo v. John Peroulis Sons Sheep Inc. (November 27, 2012):

EEOC v. Dimare Ruskin Inc. (February 15, 2012):

Entering a protective order on discovery into the claimants’ immigration status because “[t]he EEOC’s mission of protecting victims of employment discrimination would be hampered if potential victims are unwilling to come forward and cooperate because of fear of removal or other immigration consequences.”

Demaj v. Sakaj 2012 U.S. Dist. LEXIS (February 14, 2012):

Motion to Compel U Visa file in child custody case was denied, finding that the disclosure would undermine the purpose of the statute meant to protect the confidentiality of applications. Disclosure of documents relating to the victim’s U Visa contradicts the purpose of 8 U.S.C. § 1367 which is “to protect the confidentiality of the applications by preventing disclosure of these documents to alleged criminals as disclosure would allow. . . to interfere with or undermine [victim’s] immigration case.”

Hawke v. U.S. Dept. of Homeland Security (September 29, 2008):

Finding that the defendant does not have the right to receive absolutely privileged information such as the VAWA self-petition and related records contained in Department of Homeland Security case files. The defendant’s Sixth Amendment right to compulsory process does not permit access to such absolutely privileged information. VAWA Confidentiality protects all cases unless the application was denied on the merits.

Avila-Blum v. Casa De Cambio Delgado Inc. (May 16, 2006):

Approving of the magistrate judge’s protective order prohibiting questions on immigration status during the plaintiff’s deposition and explaining that such questions could chill employment discrimination cases.

EEOC v. Bice of Chicago (July 18, 2005):

Entering a protective order prohibiting discovery into immigration status because “questions about immigration status are oppressive, they constitute a substantial burden on the parties and on the public interest and they would have a chilling effect on victims of employment discrimination from coming forward to assert discrimination claims.”

EEOC v. First Wireless Group Inc. (November 19, 2004):

Upholding protective order on discovery into immigration status because such inquiries “would significantly discourage employees from bringing actions against their employers who engage in discriminatory employment practices.”

Rivera v. NIBCO INC (April 13, 2004):

Protective order issued regarding immigration status.

U.S. v. Brown (October 28, 2003):

Finding that the defendant’s right to confront witnesses was not violated when he was denied access to the witness’s immigration file and was not allowed to call an expert witness regarding the unusual immigration circumstances of the witness. The court found that the cross examination of the witness sufficiently addressed bias/motive.

U.S. v. Locascio (October 8, 1993):

Finding that the prosecution was not in possession of information acquired by federal agencies uninvolved in the state’s investigation or trial.