The alleged victim, M.H., came from Mexico to California alone in 2011. She was picked up by the Defendant, Mr. Bravo, who she had never met. They travelled to Washington State, where they stayed with Mr. Bravo’s aunt, uncle and children. M.H. slept on a mattress with Mr. Bravo. She was 8 at the time. A few nights after arrival, M.H. testified Mr. Bravo pulled down her pants and shoved his penis into her, causing pain and bleeding. M.H. later texted her mother asking “is it okay for Gildardo to put his thing in my little thing.”
M.H.’s mother later entered the U.S. from Mexico. She begin a relationship and eventually married Mr. Bravo, moving to Illinois. However they separated and M.H., her mother and her younger sister landed in a shelter in Illinois. CPS in Illinois received a confidential report of potential sexual abuse of M.H. Authorities learned the abuse occurred much earlier in Washington State. In 2018, the Whatcom County Prosecutor charged Mr. Bravo with several child rape counts involving M.H.
At trial, the State moved in limine to exclude any reference to M.H.’s current immigration status. The defense for Mr. Bravo argued that M.H. seeking a “U visa” was critical to the defense theory (motive to fabricate). A “U visa” grants temporary legal residency to a person who is the victim of a “qualifying crime” (like child rape), who helps law enforcement investigate or prosecute that crime.
The Trial Court limited defense cross examination of M.H. to her knowledge of her immigration status process at the time she reported to Illinois authorities in 2016. To obtain a “U visa” an applicant for legal U.S. status must:
(1) “possess specific facts regarding the criminal activity leading a certifying official to determine that the petitioner has, is, or is likely to provide assistance to the investigation or prosecution of the qualifying criminal activity,” and (2) [demonstrate that she is] “being helpful, or is likely to be helpful to a certifying agency in the investigation or prosecution of the qualifying criminal activity upon which his or her petition is based, and since the initiation of cooperation , has not refused or failed to provide information and assistance reasonably requested.”
Romero-Perez v. Commonwealth, 492 S.W. 3d 902, 906 (Ky. Ct. App. 2016) (altercation in original) (citation omitted) (quoting 8 C.F.R. § 214.14 (b)(3)). Lastly, qualifying relative of the victim may also be able to obtain a U-Visa. See 8 U.S.C. § 1101(a)(15(U)(ii)(l). M.H.’s mother and younger sister stood to benefit from her cooperation (which she likely did not know when first reporting).
In State v. Carballo, 17 Wn. App. 2d 337, 486 P.3d 142 (2021), the Washington Court of Appeals addressed the admissibility of a witness’s immigration status to demonstrate bias. It was an error in violation of the defendant’s Sixth Amendment right to cross-examination and to present a defense, to not allow the defendant to cross-examine the State’s key witness about her immigration status. Carballo, 17 Wn. App. 2d at 355.
The defense in Carballo argued that the defendant had a constitutional right to cross-examine the State’s key witness to expose bias and motive to fabricate. Carballo, 17 Wn. App. 2d at 345. The Appellate court agreed reasoning, “[t]he ability to provide the motive to fabricate after the key witness admits to being untruthful is critical for the defense in a case in which the State’s theory relied so heavily on that witness’ credibility.” Carballo, 17 Wn. App. 2d at 354. The Court also found persuasive reasoning in State v. Bedada, 13 Wn. App. 2d 185, 205, 463 P.3d 125 (2020) (finding the trial court committed error by excluding immigration status because “[d]emonstrating bias on the part of the key witness has long been deemed an important element of a defendant’s right to present a defense.”). The appellate court in Mr. Bravo’s case held that inquiry into M.H.’s U visa status was relevant.
Both M.H. and L.H. stood to obtain a pathway to citizenship through their testimony and help to the prosecution. M.H. was a victim of a qualifying crime, and L.H. was a qualifying relative who could receive a U visa. There was no inquiry into the possible bias or interest from M.H. and L.H.’s testimony. Perhaps L.H. may have only testified in order to obtain a U visa. It is also possible that M.H. could have continued to help the prosecution from 2016 to the trial date solely for obtaining a U visa. It is also possible that M.H. could have been pressured by her family to continue to help the prosecution so that her family could have been able to obtain a U visa. Bravo, at pgs. 11-12.
Mr. Bravo’s three charges resulted in a hung jury on two of his three counts. Division One reversed Mr. Bravo’s conviction on the remaining count. It is entirely conceivable that the trial outcome could have been different if the court allowed broader cross examination inquiry. In a concerning time of immigration awareness, trial courts are going to need clear guidance on handling the delicate, sensitive issue of immigration status.