New York Lawyer's Legal Updates

A Break For U Visa Petitioners: No Deportation For 90 Days

Author: NYC Immigration Lawyer Alena Shautsova

On February 13, 2020, a lawsuit was filed against ICE’s former Acting Director Matthew Albence by ASISTA and Sanctuary for Families. The lawsuit was about the the ICE’s intention to eliminate the prima facie determination process for U visa petitioners. On March 18, 2021, Judge Jeffrey Meyer granted specific interim conditions from the parties’ motion to stay the proceedings for 90 days. The agreement is effective from March 18, 2021 through June 15, 2021. Furthermore, there are conditions that prohibits ICE from:

  • The request for stay of U visa petitioners to be denied.
  • Removal of U visa petitioners
  • Opposition of motion to continue U visa petitioners during the 90-day period. Although there are certain exceptions pertaining to this condition that you could find below.

The Exceptions

Although, ICE may still remove U visa petitioners, their request to be denied, or oppose the U visa petition who fall under the following:

  1. Risk to National Security:
    1. Individuals who are involved in or are sufficiently have enough evidence to suspect their engagement to terrorism organization or activities.
    2. Those who are engaged in any secret intelligence activities or organization.
    3. Those who have records of apprehension, arrest or custody that may be seen as a necessary threat to the national security of the United States.
  2. Risk to Public Safety:
    1. Those who have record of an aggravated felony
    2. Those who are engaged with any criminal street gang or activities.
    3. Those individuals under the age of 16 that intentionally involved in an organized criminal gang, transnational criminal organization or activities.
  3. Extraordinary Cases:
    1. Those who do not meet the criteria above but who are risks to National Security or Public Safety written in the Johnson Memorandum.

Moreover, ICE must follow the guidelines in pre-approving if they fall under “Extraordinary Cases” in accordance with the Johnson Memorandum. Furthermore, ICE must still consider U visa petitioners to meet their requirements before removing them from being eligible to petition for U visa, deny their stay of request, or opposing to their petition or if the petitioner is under 16 years of age when they committed an offense that is questionable.

If in case the U visa petitioner needs a continuance in relation to removal proceedings, the attorney on the case can email the Office of Chief Counsel or submit a written correspondence, which is preferred to preserve a record of the request and the conversation and attach a copy of the conditions and order. The motion for continuance should be submitted as soon as possible before June 15, 2021. If in some cases the client has pending stay request, the acting attorney should contact the client’s acting Deportation Officer and provide them a copy of the conditions and the order. It might help to remind the DO that ICE may retain their ability to grant a stay of removal for these petitioners, if and only if, the agreement only places the conditions on the “Denial” decision of the stay request.

If in some cases ICE tries removing the attorney’s client, the attorney should firstly contact the client’s DO and provide a copy of the conditions and order. Next is that the attorney should submit a request for case reviewing in accordance with proper Enforcement and Removal Operations (ERO) procedures of ICE.

Take note that ICE could violate the condition and order if the following exceptions are present:

  • Removing, opposing for a Continuance, denying their stay of request if the U visa petitioner does not fall within the exceptions.
  • Fail to follow the guidelines in determining if the U visa petitioner is eligible for the categories.
  • Fail to consider U visa petitioner who committed an offense when he or she was under 16 years of age.

If the ERO violates the condition and order in any way, the attorney or petitioner should submit a request for case review through “ERO’s case review process”. If the OCC violates the condition and order in any way, the attorney and petitioner should contact their respective local OPLA field office to request for a case reviewing. Correspondence in the paper such as writing is highly recommended as it preserves any record of communication made between the request for case reviewing and the agency’s response.

More importantly, this gives U visa petitioners some breathing space because they are given ample time to fall under these categories and complete the requirements. This would somehow protect U visa petitioners to any possible apprehension or arrest that will be made against them.

If you need help with US Immigration benefits, adjustments of status, or filing to have your case reviewed by ICE, please call 917-885-2261.

30 March 2021
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