Press Release

Ballard Spahr's Brad Gershel Authors NACDL Report on Flaws in the Federal S Visa Program

June 29, 2021

An important new report—authored by Ballard Spahr attorney Brad Gershel and released yesterday by the National Association of Criminal Defense Lawyers (NACDL)—highlights the U.S. government’s failure to properly administer the S Visa program. The special program allows federal law enforcement agencies to provide legal status for non-citizens to remain in the United States if they cooperate with criminal investigations and prosecutions.

The NACDL’s report, Shining a Light on the “S” Visa: A Long History of Unfulfilled Promises and Bureaucratic Red Tape, details problems that have rendered the program ineffective in serving as the powerful tool it was meant to be for law enforcement in investigations of major crimes and terrorism. Established in 1994 in the wake of the first World Trade Center bombing, the S Visa—named for the statutory section of the Immigration and Nationality Act giving rise to the admission category—is designed to elicit “substantial assistance” from non-citizens that can be critical in national security cases.

Mr. Gershel reports that the pervasive failures in the S Visa program are primarily due not to bad faith on the part of individuals, but “to bureaucratic red tape; administrative chaos; a flawed application process that is mysteriously guarded from public scrutiny; and a lack of sufficient government incentives to undertake the daunting and drawn-out process. There is, quite simply, a systemic unwillingness to issue these visas.”

“The ramifications of this failure should be clear, particularly in the hostile national security environment—from ransomware to illegal arms trafficking—facing the United States,” the NACDL stated in a news release unveiling the report.

The report provides detailed recommendations for improving the S Visa program, centered on streamlining the application process and establishing a centralized case management system to remedy the lack of coordination among the various government agencies involved.

Central to the report is the case of Mr. Gershel’s pro bono client, who came to the United States from the Dominican Republic when he was 12 years old. As an adult, he was charged in a mortgage fraud scheme. He entered an agreement with the government and provided information that led to the arrest and conviction of nine people involved in the fraud scheme. But the Justice Department repeatedly declined to give him the S Visa he’d been promised, and an immigration judge ordered his removal from the country in 2016. He was deported three years later, following a series of unsuccessful appeals.

Ballard Spahr works with a number of referral agencies to connect the firm’s attorneys with individuals and organizations in need of pro bono legal services. Motivated to dig deeper based on his work with his pro bono client, Mr. Gershel joined forces with the NACDL to generate and distribute the report.

The NACDL is the preeminent organization in the United States advancing the goal of the criminal defense bar to ensure justice and due process for persons charged with a crime or wrongdoing. NACDL envisions a society where all individuals receive fair, rational, and humane treatment within the criminal legal system.

Firm-wide, Ballard Spahr attorneys contribute more than 50,000 hours annually to pro bono service. They advocate for fundamental human rights in cases involving the death penalty, voting rights, asylum and immigration, and child advocacy; help veterans and first-responders with estate planning through Wills for Heroes; staff legal clinics for unhoused people; assist artists and inventors in protecting intellectual property; advise entrepreneurs; and represent low-income individuals and families in a spectrum of matters.

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