Policy Update: Changes in ICE Guidance Will Impede Access to Protections for Immigrant Survivors of Violence

Late last Friday, Immigration and Customs Enforcement (ICE) released a new fact sheet  outlining when they will grant “stays” of deportation to crime victims who have cooperated with law enforcement investigations applying for a U visa.  This new guidance will create enormous barriers for survivors of violence; it eliminates critical procedural safeguards and will lead to an increased risk that survivors may face deportation before their cases are decided.  While ICE has issued a fact sheet on this new policy, it has not yet released the actual policy directive for the public to review.

Background: The fact sheet states that ICE has replaced long-standing guidance which laid out the process ICE should follow in adjudicating stays for U visa applicants in removal proceedings and in immigration detention. Specifically, ICE was required to reach out to U.S. Citizenship and Immigration Service (USCIS) to determine whether the applicant has established a “prima facie” case. If they did, then ICE could “favorably view” a victim’s request for a stay of removal (absent certain adverse factors).

New changes: The “prima facie” determination process outlined in the prior guidance has been replaced by a “totality of the circumstances” framework, instructing individual ICE officers to consider positive or negative factors and “any federal interest(s) implicated” to decide whether halting deportation is appropriate. ASISTA is deeply concerned that this new standard is vague and will not improve this important process for survivors.

Legal obstacles: Federal statute specifically mentions the “prima facie” analysis when considering U visa applicants’ stay requests.[i] ICE cannot simply swap this Congressionally-established prima facie standard for a totality of the circumstances standard. Furthermore, the fact sheet indicates that ICE will no longer have to receive input from those government officials with specialized training in survivor-based cases. Untrained in trauma-informed practice, and in the dynamics of domestic and sexual violence, these agents will determine a survivor’s  “totality of the circumstances” as well as what “federal interests will be considered.” This will result in inconsistent adjudications of stay requests, an erosion of due process and limits on access to protections for survivors. It will cause additional hardship, both for the agency and the advocacy community, to address the erratic outcomes of this new guidance.  For survivors, the consequences are dire. Survivors fleeing abusive relationships may not have documents available to help support a “totality of the circumstances framework” and the trauma they endured due to their victimization is compounded enormously by the risk of deportation. 

The fact sheet also contains provisions for victims on the U visa waitlist and those granted U visa status, stating “It is ICE policy to respect USCIS’ grant of deferred action to a U visa waitlisted petitioner.”[ii] Waitlisted victims and approved survivors should not have to endure the hardship and uncertainty of being in removal proceedings.

Creating Additional Barriers: ASISTA remains deeply concerned about ICE abandoning its prior guidance. The new policy will increase ICE’s disparate treatment of requests to halt deportation for crime victims cooperating with law enforcement investigations. USCIS currently has an egregious backlog in the adjudication of U visa applications and the processing times for U visa cases is listed to be between 51.5 and 52 months[iii] from the time of filing to consideration on the waitlist. Such long waits, coupled with ICE’s harmful new policy,  mean that survivors who cooperate with law enforcement to increase public safety will now risk potential deportation before their cases are ever heard.

Deporting immigrant crime victims who have been certified as helpful to law enforcement directly contravenes the purpose of these bipartisan protections established by Congress.  We call on ICE to re-establish the prima facie system and to halt  deportations of immigrant crime survivors while their applications are pending. We urge Congress to hold the Department of Homeland Security accountable for diminishing access to critical protections for victims of crime.

[i] INA 237(d)

[ii] Revision of Stay of Removal Request Reviews for U visa Petitioners at 1.

[iii] See USCIS Processing Times for the estimated adjudication period for I-918 Petition for U Nonimmigrant Status adjudicated at the Vermont or Nebraska Service Center, available at https://egov.uscis.gov/cris/processTimesDisplayInit.do Center