In 2000, when Congress created a special protection known as the U-visa for immigrant victims of crimes in the United States, the move was intended to encourage undocumented survivors who suffered "substantial physical or mental abuse" to come forward. The understanding was that, in being allowed to remain in the country, they would be able to cooperate with law enforcement in criminal investigations, therefore helping improve public safety.
But a number of official and unofficial policies put in place by the Trump administration, and an increasing backlog of pending cases, have been making this important protection increasingly less effective and even dangerous for eligible applicants. Last year, then-Attorney General Jeff Sessions limited immigration judges' authority to close cases administratively, a docket management tool that was sometimes used to ensure that applicants could ask or wait for a decision on pending immigration reliefs. And ever since last November, even applying for a U-visa in the first place has gotten riskier, as a denied application might lead to removal proceedings.
Now, Immigration and Customs Enforcement is reversing one of its internal guidances regarding U-visas that still offered some protection against deportation for those in detention and with final orders of removal
What Did Previous Policies Look Like?
Until now, ICE had policies in effect instructing officers to basically ask Citizenship and Immigration Services (USCIS)—the agency in charge of granting or denying immigration benefits like U-visas—what was the likelihood that a certain case would be approved before denying a stay of removal request. If USCIS made a positive determination of prima facie eligibility, ICE officers should then look favorably at the case and halt the deportation until a final decision was made on the visa petition—unless there were "serious adverse factors," like significant criminal history and public safety concerns
What Has Changed?
Under its revised policy, ICE will no longer follow that extra step of requesting a prima facie determination before deciding on a stay of removal request. Instead, ICE officers and attorneys will have sole discretion to "review the totality of the circumstances."
"As the number of U visa petitions submitted increased, this process became burdensome on both agencies and often did not impact ICE's decisions," the agency statement says.
Although ICE has just now made this policy change official, lawyers and experts argue that the agency no longer followed its own guidance while maintaining that it remained in effect. In 2018, the organization ASISTA surveyed more than 140 immigration attorneys representing U-visa applicants in removal proceedings across 30 states, who described how ICE attorneys were not requesting prima facie determinations at all or, in some jurisdictions, would only consider it for applicants in detention.
"This lack of clarity and consistency in practice is extremely harmful to survivors and their families, as their ability to stay in the country while their applications are pending depends upon how their local ICE office views this guidance," the report says
What Does the Change Mean for Applicants?
Currently, USCIS is taking as long as four years to adjudicate a case because of an immense backlog, which means that people waiting for a decision on a U-visa are increasingly vulnerable to ICE arrests. The earlier memos, encouraging ICE to use its prosecutorial discretion to grant stays in such cases, offered a bulwark against the deportation of survivors whose petitions were pending.
But even when such guidances were still technically in place, ICE would often choose not to follow them. In the case of a 67-year-old grandmother of nine from Mexico with a years-long pending U-visa application, ICE only granted her a stay of deportation after she filed a lawsuit asking the court to order USCIS to determine her eligibility for the visa, or else to make a final decision on her case. In another instance, an immigrant from Nigeria trying to stop his deportation said he'd had to request three times that ICE stay his removal, despite USCIS having notified the agency that he was eligible for the U-visa protection
Now, attorneys are expressing fear that the new official guidance will undermine victims' ability to access justice and help law enforcement. "This will be abused and used as a deportation tool, which will then result in fewer reports and more abuse victims being stuck in their horrible circumstances," Justin Sweeney, an attorney in California, posted on Twitter.