A policy issued by U.S. Immigration and Customs Enforcement, or ICE, acting director Tae D. Johnson provides important protections to noncitizen crime victims, including those with pending or approved applications for certain humanitarian immigration benefits. The Aug. 10, 2021 ICE directive, titled “Using a Victim-Centered Approach with Noncitizen Crime Victims,” states that “applying a victim-centered approach minimizes any chilling effect that civil immigration enforcement actions may have on the willingness and ability of noncitizen crime victims to contact law enforcement, participate in investigations and prosecutions, pursue justice, and seek benefits.” Id. at 1. As described further below, the policy directs ICE personnel to (1) generally refrain from civil immigration enforcement actions against certain noncitizens who are victims of or witnesses to crime, (2) coordinate with U.S. Citizenship and Immigration Services, or USCIS, to seek expedited adjudication of certain victim-based immigration applications and petitions, and (3) identify whether noncitizens encountered by ICE are crime victims and provide noncitizen victims with relevant information.

1. Protections Against Enforcement for Noncitizen Crime Victims

The policy directs ICE officials to refrain from taking civil immigration enforcement action, absent “exceptional circumstances,” against noncitizens who fall within certain victim/witness categories. The protected categories include:

• (1) victims and witnesses during the pendency of any known criminal investigation or prosecution, id. at 2;
• (2) human trafficking victims issued “Continued Presence,” id. at 9; and
• (3) applicants for and beneficiaries of victim-based immigration benefits (both primary and derivative), including T nonimmigrant status, U nonimmigrant status, VAWA relief, and Special Immigrant Juvenile classification, id. at 2, 4.

For noncitizens who fall within the third category, the policy states that ICE will generally defer enforcement decisions “until USCIS makes a final determination on the pending victim-based immigration benefit application(s) or petition(s), including adjustment of status for noncitizens with approved Special Immigrant Juvenile status, or, in the case of a T visa, U visa, or VAWA application, until USCIS makes a negative bona fide or prima facie determination.” Id. at 2. For those noncitizens with pending victim-based applications who have a final removal order, the policy directs that, absent exceptional circumstances, they “should generally be issued a stay of removal.” Id. at 8. If a noncitizen has a pending victim-based application but has already been removed, a companion “Frequently Asked Questions” document states that they may be an appropriate candidate for parole. If a noncitizen’s victim-based immigration application is approved (or, where USCIS waitlists a petitioner for U nonimmigrant status), the policy directs ICE to “review the case for the exercise of prosecutorial discretion,” id. at 8, including considering release if the noncitizen is in ICE custody, “so long as their release is not prohibited by law and no exceptional circumstances exist.” Id. at 9.

Under the policy, exceptional circumstances are generally limited to situations where the noncitizen poses either (1) national security concerns; or (2) an “articulable risk of death, violence, or physical harm to any person.” Id. at 3. If an ICE officer wishes to pursue immigration enforcement against a noncitizen with a pending or approved victim-based immigration application, they must first obtain pre-approval by submitting a written justification to a headquarters responsible official explaining why the proposed action complies with this policy. Id. at 9.

Generally, the memo states that a noncitizen’s victim status “is a discretionary factor that must be considered in deciding whether to take civil immigration enforcement action against the noncitizen or to exercise discretion, including but not limited to release from detention.” Id. at 2. Civil immigration enforcement actions include decisions whether or not to: detain a noncitizen; issue, serve, file, or cancel a Notice to Appear; grant deferred action or parole; and execute a final order of removal. Id. at 3.

2. Coordination with USCIS

The policy requires ICE to coordinate with USCIS in cases where a noncitizen has a pending victim-based immigration application or petition. The policy directs ICE to return the noncitizen’s original A-file to USCIS as soon as practicable so that USCIS can adjudicate the request. Id. at 7. And, in cases where ICE does not release a noncitizen with a pending victim-based application from custody, ICE must ask USCIS to expedite the adjudication. Id. at 8.

3. Identification of Crime Victims

The policy requires ICE officers to “proactively inquir[e] with noncitizens, where available information indicates a noncitizen may be a noncitizen crime victim or witness, about any prior victimization, any pending petitions or applications, and, where appropriate, access[] USCIS systems for evidence of any pending or approved victim-based applications or petitions.” Id. at 6. ICE officers must “must look for indicia or evidence that suggests a noncitizen is a victim of crime, such as being the beneficiary of an order of protection or being the recipient of an eligibility letter from the U.S. Department of Health and Human Services Office of Trafficking in Persons.” Id. at 2. If ICE identifies a noncitizen as a crime victim and the noncitizen has not yet reported the crime to law enforcement, the policy directs ICE to provide the noncitizen with contact information for relevant law enforcement agencies and information regarding legal services and victim-based immigration benefits. Id. at 10.

Tips for Practitioners

Practitioners should consider the following tips in advocating for noncitizen victims using the ICE memo:

• Assuming it is in the client’s interest to do so, affirmatively raise clients’ victim status with ICE at the earliest possible opportunity. Practitioners may also wish to provide clients with a letter that explains their victim status and that they are represented by counsel, and advise clients to carry this letter with them in the event they are detained by ICE.
• Carefully review the memo, which is quite detailed, in order to craft tailored prosecutorial discretion requests to ICE.
• Consider seeking various forms of prosecutorial discretion contemplated by the memo, including release from detention, stays of removal, deferred action, and parole.
• If the initial request for prosecutorial discretion under this memo is unsuccessful, elevate the request to the Field Office Director, and if that is unsuccessful, to the Senior Reviewing Officer. This fact sheet provides general information about the ICE case review process.
• Where relevant, also consider seeking prosecutorial discretion with respect to immigration court removal proceedings from the ICE Office of the Principal Legal Advisor, including, as relevant, dismissal of proceedings, joint motions to administratively close, or joint motions to reopen.

Overall, this policy imposes additional duties on ICE officers before they may detain or take other immigration enforcement action against a noncitizen. The victim-centered approach mandated by this policy stands in stark contrast to the indiscriminate detention and enforcement against noncitizens conducted by the previous administration.