Lawsuit Filed Challenging ICE for its Abrupt Policy Change on Stays for Immigrant Crime Survivors

Changes to Immigration and Customs Enforcement (ICE) policy were announced August 2, 2019 that create significant additional barriers for victims of crime who cooperate with law enforcement in the investigation and prosecution of their crimes. ASISTA, represented by Protect Democracy and the Constitutional Accountability Center, filed suit today in Connecticut to challenge the legality of this policy and to show the harm it presents to victims who are U visa petitioners nationwide.

ASISTA challenges this policy based on the fact that Acting ICE Director Matthew Albence, who signed off on this new ICE Directive, was serving illegally in violation of the Appointments Clause of the Constitution and federal statutes.  The law requires that the Director of ICE be confirmed by the Senate; however, there has not been a Senate-confirmed ICE Director for more than three years now. ICE must be held accountable for violating the law, and for creating barriers for immigrant survivors of violence seeking protection and relief.

Gail Pendleton, Executive Director of ASISTA states, “This new policy is an egregious attack on due process. It serves as another example of this Administration’s attempt to erode, through policy changes, the bipartisan protections Congress created and expanded for immigrant survivors over the past 25 years. Deporting survivors of rape, kidnapping, domestic violence and other serious crimes who help law enforcement makes our communities much less safe.”

Cecelia Friedman Levin, ASISTA’s Policy Director states, “This new ICE policy exposes immigrant survivors of crime who come forward to help law enforcement to precisely the risk they sought to avoid and from which a bipartisan majority in Congress sought to protect them.”

BACKGROUND

The new ICE policy changed the process and criteria by which ICE would consider a “stay of removal” for victims of crime who are eligible for U visas.   The bipartisan U visa program was created by Congress in 2000 to provide a path to legal immigration status for noncitizen survivors of crimes who are helpful in the investigation or prosecution of the crimes against them.

The new ICE guidance eliminates important procedural safeguards, which will lead to an increased risk that survivors will be deported before their cases are decided. Unlike the prior policy which encouraged stays of deportation for U visa applicants for meritorious applications, this new guidance leaves decisions up to individual ICE officers to consider the “totality of the circumstances” including evaluating “any federal interests implicated” in deciding whether halting deportation is appropriate.  This new vague standard creates inconsistent and arbitrary results for survivors with pending U visa matters.

A copy of the Complaint is here, a copy of the Memo in Support of Summary Judgment is here, a copy of the Plaintiffs’ Statement of Material Facts is available here, and a copy of Plaintiff’s Reply Memo on Summary Judgment is here. (Click here to download the Plaintiffs's Reply in Word version).

On March 18, 2021, ICE agreed not to (1) deny stay requests for U visa petitioners; (2) remove U visa petitioners; or (3) oppose motions to continue for U visa petitioners, subject to certain exceptions, for 90 days. 

Joint Status Report

Order 

Practice Update: ICE Agrees Not to Remove, Deny Requests for Stay of Removal, or Oppose Continuances for U Visa Petitioners for 90 Days (March 22, 2021)

On March 18, 2021, Judge Jeffrey A. Meyer granted the parties’ joint motion to stay the proceedings for 90 days subject to specific interim conditions. These conditions prohibit ICE from (1) denying a request for stay for U visa petitioners; (2) removing U visa petitioners; or (3) opposing a motion to continue for U visa petitioners during the 90 day period, subject to certain exceptions. This update informs practitioners of the terms of the agreement and potential implications for representing U visa clients.

Albence Practice Advisory (Update 6/21/2021): Stay Extended through July 2, 2021 

The stay in ASISTA v. Johnson (formerly known as ASISTA v. Albence) has been extended through July 2, 2021 while the parties continue discussions regarding an additional 90 day stay. Our practice advisory has been updated accordingly. 

Albence Practice Advisory (Update 7/12/2021): Stay Extended through August 13, 2021 

The stay in ASISTA v. Johnson (formerly known as ASISTA v. Albence) has been extended through August 13, 2021. Our practice advisory has been updated accordingly.