Is Victim’s U-Visa Immigration Status Admissible?
In late 2011, Martin Moya Lopez and his common-law wife, Gloria Abarques, allowed a woman named Maya Hermosillo to live with them in their home in Panorama City, California.
Ms. Hermosillo introduced them to Edward Zuniga and Orlando S. Burgos, two local gang members.
Soon thereafter, Zuniga brought a used car to Moya and Abarques’ home and tried to sell it to them. Moya and Abarques declined, but Zuniga would not take no for an answer. He told them they owed him $800 for the car and left it in front of their house for a week.
Then on the evening of January 6, 2012, Mr. Zuniga and a few others robbed Mr. Moya and Ms. Abarques’ home. Ms. Abarques was home alone during the robbery. When Mr. Moya returned home, he saw people removing items from his house and he decided to stay with his uncle for the night.
The next morning, Mr. Moya was kidnapped from his uncle’s house. He was taken to a garage where Mr. Burgos and about ten others were waiting. Mr. Burgos forced Mr. Moya to the ground and then hit him on the head and back and threatened him with a gun.
At some point, Mr. Zuniga arrived at the garage and told Mr. Moya he now owed him double for the used car and needed to pay within 24 hours.
Mr. Moya was then released and went to his uncle to borrow money to pay for the car. While he was there, Mr. Zuniga showed up, demanded payment and hit Moya across his face with the flat side of a knife.
A few days later, Ms. Abarques reported the entire matter to the Los Angeles Police Department. Mr. Burgos and Mr. Zuniga were thereafter arrested and charged with several crimes relating to the incident.
Sometime after January 25, 2012, the government placed an immigration hold on Mr. Moya, who was undocumented, and he voluntarily left the United States, returning to Mexico.
On October 18, 2012, Mr. Moya was paroled back to the United States and received U-Visa immigration status, which is available to victims who have suffered mental or physical abuse of certain crimes who help law enforcement in the investigation and prosecution of criminal activity.
In Mr. Moya’s declaration accompanying his U-Visa application, he states: “I am applying for a U-Visa based on the horrific kidnapping, extortion and felonious assault I fell victim to on or about January 7, 2012” and provided more detailed about the crimes.
At a pretrial hearing for Mr. Burgos and Mr. Zuniga, defense counsel argued that they should be permitted to raise Mr. Moya’s U-Visa status for impeachment purposes, asserting the relevance of Mr. Moya’s credibility. The judge ruled that the defense could ask Mr. Moya about any inconsistencies between his U-Visa application and his testimony, but could not refer to his immigration status.
At trial, Ms. Moya was the only witness to testify to implicate Mr. Burgos in the crimes. His testimony at trial was largely consistent with the story he first told a detective after the crime.
The jury credited Mr. Moya’s testimony and Mr. Burgos was convicted of making criminal threats (Penal Code § 422) and assault with a firearm (Penal Code § 245(a)(2)).
On appeal, Mr. Burgos argued that the trial court judge unconstitutionally prevented him from cross-examining Mr. Moya about his immigration status, arguing that Mr. Moya’s U-Visa status was relevant to his motive and/or bias and this was relevant to his credibility.
The California Court of Appeal for the Second District agreed, holding that the trial court judge violated the Confrontation Clause of the Sixth Amendment by restricting cross-examination because Mr. Moya’s U-Visa was “relevant to show motive and / or bias,” but that the error was harmless beyond a reasonable doubt.
The Court of Appeal emphasized that more than eight months had passed between when Mr. Moya had reported the crime and when he applied for a U-Visa, “rendering any inference that his account was intended to bolster his application for temporary residence in the United States “speculative at best.”
Mr. Burgos then appealed to the California Supreme Court, which denied review.
Mr. Burgos then filed a petition for a writ of habeas corpus in the U.S. District Court, challenging the harmless determination by the California Court of Appeal. The District Court denied the petition, finding the harmlessness determination was not unreasonable because “the inference of a motive or bias was largely negated by the fact that Moya reported the crimes eight months prior to filing his U-Visa application.”
Mr. Burgos then appealed this to the United States Court of Appeal for the Ninth Circuit (in Pasadena) in Orlando S. Burgos v. Raymond Madden, Warden.
The Ninth Circuit affirmed, noting that even under the lenient standard of Brecht v. Abrahamson (1993) 507 U.S. 619.
Client Reviews
★★★★★
"Thank you so much for putting so much effort in this case. We really appreciate it and we are happy that all turned out well." S.A., Torrance
★★★★★
"Greg Hill did an outstanding job on every level. He was efficient, thorough, knowledgeable, courteous, responsive & brilliant. He welcomed my input and my concerns. . . from the first conversation to the last - I always felt 'it mattered' to him." S.C., Rolling Hills Estates
★★★★★
"Thanks again for your hard work. We want you to know that we are very appreciative of all that you have done [on our son's] behalf. With warmest regards." L.H., Torrance
★★★★★
"Dear Greg, Thank you again for all your help. Your professionalism and thoroughness is greatly admired. I will definitely recommend you to my friends if they ever need legal help." V.L., Carson
★★★★★
"Thanks for investing in my case. I talked to other attorneys out there and they had an arms-length of attitude, but not you. Your intensity and interest helped a lot." C.R., Pomona