This month, Immigration and Customs Enforcement announced an important policy change pertaining to enforcement against individuals who have filed for protection under the U visa program. The changes are formalized in Directive 11005.2 and summarized in a Questions and Answers Fact Sheet issued by the agency on August 2. In a significant reversal of the former practice, ICE officers are no longer required to interact with USCIS to request a prima facie determination of eligibility for U status before executing a removal order against an individual who has lodged a Stay of Removal. Effective immediately, ICE officers and attorneys are now accorded a wide berth of discretion to determine what action to take against such individuals. Enforcement are to consider the totality of circumstances, including both positive and negative factors; the beneficial impact of an applicant’s assistance to law enforcement; and whether a temporary reprieve from removal is appropriate-all this without input from USCIS, which is in charge of adjudicating the U visa application. As a consequence, a sizeable population of U visa applicants with outstanding removal orders but who have legitimate pending U visa applications, may be expeditiously removed notwithstanding that they may have meritorious, approvable cases.
Significantly, though, the Directive does seem to honor provisionally approved applications which have been placed onto the waiting list due to the dearth of visas (only 10,000 are allotted per year). The agency has pronounced that ICE will not remove a U visa petitioner (or qualifying family member) who has been placed on the waiting list and granted deferred action unless deferred action has been terminated or the applicant has triggered a new basis of removability after having been placed onto the waiting list. Similarly, ICE may join a motion to terminate in cases where the petitioner has been waitlisted or already approved. This is something of a rarity these days since ICE uniformly opposes all motions to terminate and seeks to prosecute cases to their completion. Essentially, then, those who have at least made it onto the waiting list with deferred action are afforded a certain degree of insulation. Everyone else, unfortunately, is fair game, subject to the individual whim or subjective judgement of an officer.
Given how long USCIS takes to adjudicate U visa applications, the reality is that thousands more of individuals will be swept up in an aggressive dragnet machine that moves relentlessly towards execution despite tension with the intent and spirit of the U visa program.