In 2021, the Federal Government, including the Department of Homeland Security and its agencies USCIS and I.C.E., released new policies regarding enforcement of civil immigration law and the U visa program. These policies are an effort to comply with Executive Order (E.O.) 13993, Revision of Civil Immigration Enforcement Policies and Priorities, 86 Fed. Reg. 7051 (Jan. 20, 2021) and Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans 86 Fed. Reg. 8277 (February 2, 2021), which articulated values and priorities for the administration regarding the enforcement of the civil immigration laws and set new strategies to eliminate sources of fear and other barriers that prevent immigrants from accessing government services available to them.
Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans (Feb. 2, 2021)
President Biden issued an Executive order (“E.O.”) on February 2, 2021, articulating the values and priorities for his administration concerning the U.S. Legal Immigration System. The E.O. stated that the Federal Government should develop welcoming strategies that promote immigrants’ integration, inclusion, and citizenship. The strategies include ensuring that the immigration processes and other benefits are delivered effectively and efficiently and eliminating sources of fear and other barriers preventing immigrants from accessing government services available to them.
The E.O. covers the different strategies for D.H.S. and other offices in the Federal Government to “welcome and support immigrants, including refugees, and to catalyze State and local integration and inclusion efforts.” The efforts to restore trust in the U.S. legal immigration system include, but are not limited to:
- Review existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that may be inconsistent with the values stated on this E.O.
- Identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits and make recommendations on how to remove these barriers, as appropriate and consistent with applicable law;
- Immediate Review of Agency Actions on Public Charge Inadmissibility
- consider and evaluate the current effects of these agency actions and the implications of their continued implementation in light of the policy set forth in section 1 of this order;
- identify appropriate agency actions, if any, to address concerns about the current public charge policies’ effect on the integrity of the Nation’s immigration system and public health; and
- recommend steps that relevant agencies should take to clearly communicate current public charge policies and proposed changes, if any, to reduce fear and confusion among impacted communities.
- Promote Naturalization
- eliminate barriers in and otherwise improve the existing naturalization process, make the naturalization process more accessible to all eligible individuals
This memorandum issued on September 30, 2021, to U.S. Immigration and Customs Enforcement provides guidance for the apprehension and removal of noncitizens. In the Memo, Mayorkas points out that in the United States, there are more than 11 million undocumented or removable noncitizens. “The majority of the more than 11 million undocumented or otherwise removable noncitizens in the United States have been contributing members of our communities across the country for years. The fact an individual is a removable noncitizen will not alone be the basis of an enforcement action against them.” Therefore the memo states that it is necessary to exercise discretion and determine priorities for immigration enforcement action. In doing so Secretary Mayorkas stated: “For the first time, our guidelines will, in the pursuit of public safety, require an assessment of the individual and take into account the totality of the facts and circumstances.” See the full text of the DHS announcement about these new guidelines.
New civil immigration enforcement priorities for apprehension and removal of noncitizens are:
- Threat to national security – noncitizen who engaged in or is suspected of terrorism or espionage, or terrorism-related or espionage-related activities, or who otherwise poses a danger to national security
- Public safety – noncitizen who poses a current threat to public safety, typically because of serious criminal conduct, is a priority for apprehension and removal.
- Border security – people apprehended trying to enter unlawfully in the U.S., or apprehended in the United States after unlawfully entering after November 1, 2020.
More on “Public Safety”
On the threat to public safety, the memo also emphasizes the D.H.S. personnel must evaluate the totality of the facts and circumstances to exercise their judgment. D.H.S. personnel should, to the fullest extent possible, obtain and review the entire criminal and administrative record and other investigative information to learn of the totality of facts of the conduct at issue.
This joint U.S. Immigration and Customs Enforcement (I.C.E.) and U.S. Customs and Border Protection (C.B.P.) memorandum sets forth updated policy regarding civil immigration enforcement in or near federal, state, and local courthouses. Absent certain limited circumstances, this joint memorandum prohibits civil immigration enforcement actions in or near courthouses.
The Limited Circumstances for Courthouse Enforcement
The limited circumstances where civil immigration enforcement action may be taken in or near a courthouse are if
- it involves a national security threat, or
- there is an imminent risk of death, violence, or physical harm to any person, or
- it involves hot pursuit of an individual who poses a threat to public safety, or
- there is an imminent risk of destruction of evidence material to a criminal case.
Threat to Public Safety
Civil immigration enforcement action also may be taken in or near a courthouse against an individual who poses a threat to public safety if:
- it is necessary to take the action in or near the courthouse because a safe alternative location for such action does not exist or would be too difficult to achieve the enforcement action at such a location, and
- the action has been approved in advance by a Field Office Director, Special Agent in Charge, Chief Patrol Agent, or Port Director.
John Trasvina Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities (May 27, 2021)
On May 27, 2021,2 ICE Principal Legal Advisor John Trasviña issued a department-wide memorandum (“Trasviña memo”) to OPLA attorneys to guide them to appropriately executing the Department’s and I.C.E.’s interim enforcement and removal priorities and exercising prosecutorial discretion. OPLA attorneys are expected to exercise their discretion thoughtfully, consistent with I.C.E.’s important national security, border security, and public safety mission.
The Trasviña memo covers the enforcement and removal priority cases, the several prosecutorial discretion of OPLA attorneys, including in proceedings before EOIR, whether to file or cancel a Notice to Appear (NTA). The memo also discusses the authority to exercise prosecutorial discretion on administrative closures of cases by EOIR, dismissal of proceedings, the discretion to take legally viable appeals of decisions and make appropriate legal arguments in response to noncitizen appeals and motions, and the discretion to join motions for relief ( oral or written).
I.C.E. Directive 11005.3: Using a Victim-Centered Approach with Noncitizen Crime Victims (August 10, 2021)
This Directive sets forth U.S. Immigration and Customs Enforcement (I.C.E.) policy regarding civil immigration enforcement actions involving immigrant crime victims, including applicants for and beneficiaries of victim-based immigration benefits and Continued Presence.
The Directive acknowledges that a victim-centered approach minimizes the chilling effects that civil immigration enforcement actions may have on the willingness and ability of immigrant crime victims to contact law enforcement, participate in investigations and prosecutions, pursue justice, and seek benefits. In addition, the victim-centered approach encourages victim cooperation with law enforcement, engenders trust in I.C.E. agents and officers, and bolsters faith in the entire criminal justice and civil immigration systems.
- Facilitate Access to Justice: I.C.E. will exercise prosecutorial discretion in appropriate circumstances to facilitate access to justice and victim-based immigration benefits by immigrant crime victims.
- Applicants for and beneficiaries of victim-based immigration benefits: I.C.E. will refrain from taking civil immigration enforcement action against known beneficiaries of victim-based immigration benefits and those known to have a pending application for such benefits.
- Victims of Crimes who are not applicants: If I.C.E. encounter a victim of crime that is not beneficiary of immigration reliefs, I.C.E. officers must look for evidence to confirm they are crime victims. The fact that a person is a victim of crime is a discretionary factor that must be considered in deciding whether to take civil immigration enforcement action against the noncitizen or exercise discretion, including but not limited to release from detention.
- Assist Law Enforcement Partners – during the pendency of any known criminal investigation or prosecution, I.C.E. will not take civil immigration enforcement action against victims and witnesses without approval from Headquarters Responsible Officials.
The I.C.E. memo list a series of procedures and requirements that I.C.E. officers must take in order to exercise a victim-centered approach.
- Identifying Applicants for and Beneficiaries of Victim-Based Immigration Benefits
- Returning A-Files to USCIS
- Adhering to 8 U.S.C. § 1367 Protections.
- Deferring to USCIS Adjudications
- Respecting I.C.E. Continued Presence Authorization
- Implementing a Victim-Centered Approach to Civil Immigration Enforcement
- Approvals for Civil Immigration Enforcement Actions
- Identifying Noncitizen Crime Victims
- Tracking and Reporting Civil Immigration Enforcement Actions Against Applicants for and Beneficiaries of Victim-Based Immigration Benefits to the Office of the Director
- Human trafficking victims
- Domestic violence charges
USCIS issued updated criteria for expediting adjudication of applications and petitions with its most recent update October 1, 2021. This policy can be helpful in cases of immigrant crime victims with pending VAWA self-petitions, U visa or T visa cases when the victim is detained or there is case pending before an immigration judge in which there is a date for a merits hearing set and the victim needs to have their case adjudication expedited, so as to have a decision on that case before the victim has to appear in immigration court for a merits hearing.
Importantly the new expedite criteria explicitly lists safety of the victim due to VAWA confidentiality violations as an emergency or urgent humanitarian basis for an expedite requests. Requests to expedite can be filed by attorneys for the victim including when ICE is also authorized to file expedite requests for victims in removal proceedings and with final orders of removal.
New D.H.S. U Visa Bona Fide Policy Provides Earlier Access Deferred Action and Work Authorization to Applicants (June 14, 2021)
On June 14, 2021, The Secretary of Homeland Security, Alejandro Mayorkas, announced a new policy for making bona fide determinations in U visa cases that will result in immigrant victims who are U visa applicants receive much earlier access to work authorization and deferred action, which offers important protections from deportation to immigrant U visa applicant survivors. USCIS has decided to exercise its discretion to conduct bona fide determinations (BFD) and provide Employment Authorization Documents and deferred action to noncitizens with pending, bona fide petitions who meet certain discretionary standards.
These policy changes are consistent with the research findings conducted by NIWAP showing that providing victims a path to economic independence through work authorization fosters greater trust and faith in law enforcement and in the U.S. justice system, which is the primary goal of the U visa program.
The new D.H.S. Policies have revoked some older policies. The following policies are no longer in force, but they are available for consultation on our website.
(1) the January 20, 2021, Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities issued by then-Acting Secretary David Pekoske, and
(2) I.C.E. Directive No 11090.1: Interim Guidance: Civil Immigration Enforcement and Removal Priorities issued by Acting I.C.E. Director Tae D. Johnson. (Feb. 18, 2021)
(3) I.C.E. Directive: 11005.2: Stay of Removal Requests and Removal Proceedings Involving U Nonimmigrant Status (U Visa) Petitioners (Aug. 2, 2019)
 The Trasviña memo refers to a memorandum issued on May 27, 2021, from Acting D.H.S. General Counsel Joseph B. Maher, titled Implementing Interim Civil Immigration Enforcement Policies and Priorities (“Maher memo”) that is referenced throughout the Trasviña memo. The Maher memo has yet to be publicly released.
*This publication was developed under grant number SJI-20-E-005 from the State Justice Institute. The points of view expressed are those of the authors and do not necessarily represent the official position or policies of the State Justice Institute.