NM Supreme Court rules alleged crime victims don't need to disclose visa applications
The New Mexico Supreme Court on Thursday ruled unanimously that criminal defendants are not entitled to visa applications from their alleged victims who are seeking protections from deportations as part of their testimonies.
So-called U and T visas allow non-citizen crime victims to report crimes and testify against perpetrators without fear of being deported. Approved visas allow victims temporary stays in the United States and also a potential avenue to lawful permanent resident status.
Last year, the court ordered judges in San Juan and Bernalillo counties to return or destroy victim visa application material that prosecutors had previously provided to defense teams. The court's new ruling in an opinion issued today provides the legal reasoning for that order.
Local DA says immigrant crime victims are going silent amid deportation fears, letting abusers free
A rule requiring prosecutors to provide applications to defense teams could have a 'chilling effect' on 'immigrants' willingness to report crimes,' the court's opinion, written by Justice Shannon Bacon, said.
First Judicial District Attorney Mary Carmack-Altwies recently told Source New Mexico that some immigrant crime victims have stopped answering her phone calls, potentially out of fear of being deported despite qualifying for U visas. About 25 alleged crime victims applied for the visa in her judicial district in the first two months of 2025.
One woman who stopped participating in the criminal justice process accused her partner, a United States citizen, of abusing her and two kids, both under age 11 and citizens themselves, Carmack-Altwies said in February.
While the court rules that visa applications are now confidential and protected against disclosure during discovery, there are instances when information in an application must be turned over.
For example, if the prosecution knows that a victim has applied for a U visa, they should turn that over to the defense team, 'because the fact of a U/T-Visa application is relevant impeachment material,' the court wrote.
A crime victim's credibility could reasonably be called into question, according to the court, because the benefits of a U or T visa are 'significant and could provide ulterior motives.'
The court explained that 'the defense may impeach the victim's credibility by cross-examining the victim about the potential benefits that a U/T-Visa offers to a victim, acknowledging these benefits are significant and could provide ulterior motives.'
When the U/T-visa application is relevant to the victim's motive, the court wrote, a defendant can:
Cross-examine witnesses, including victims, regarding their knowledge and participation in the U/T-Visa application process and their reasons for involvement;
impeach a witness who has made 'prior inconsistent statements on the topic';
educate the jury about what U/T visa is and their benefits by cross-examining the state's witnesses or direct examination of defense witnesses';
and make related closing arguments
Also, if prosecutors have a copy of the visa application and material within it bears on the defendant's guilt, then the information — 'not the application' itself — must be disclosed, according to the court opinion. If the prosecution and defense disagree on whether information in the application is material, a judge may have to review it in private.
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