ASISTA Immigration Assistance v. Albence
Congress created the U‑nonimmigrant visa, or “U visa” to allow immigrant survivors of crimes such as domestic violence and sexual assault to remain in the United States if they help law enforcement investigate or prosecute those crimes. To prevent people from being deported before their U-visa applications are processed, Congress authorized the government to stay the deportation of individuals who have pending U-visa applications—a policy followed for years by U.S. Immigration and Customs Enforcement (ICE). However, in August 2019, the purported “Acting Director” of ICE, Matthew Albence, issued a directive that made significant changes to ICE’s policy regarding U-Visa applicants. While individuals applicants were previously granted a stay of deportation if they had filed a proper U-visa application and no “adverse conditions” existed, under the new directive, people who meet these standards are no longer protected from deportation, making them much more likely to be deported as they await a decision on their U-visa applications. As a result of this policy change, crime victims who have applied for U visas with the support of law enforcement are at greater risk of being deported before their applications are processed, even though they may ultimately be found entitled to receive a U visa and remain in the United States.
On February 13, along with co-counsel Protect Democracy, CAC sued Albence and other federal officials on behalf of ASISTA Immigration Assistance, a nonprofit organization that, among other things, trains and provides technical assistance to attorneys representing survivors of violence in immigration proceedings. Our lawsuit alleges that Albence was illegally performing the role of “Acting Director” of ICE when he issued the new policy and therefore had no authority to issue the policy.
As our complaint explains, our nation’s Founders adopted the Constitution’s Appointments Clause to prevent abuses of executive power. The Clause requires that high-level federal officers be confirmed by the Senate after presidential nomination, and that all other officers be appointed in the same manner unless federal law provides otherwise. Here, federal law unequivocally requires that the ICE Director be nominated by the President and confirmed by the Senate.
While the Federal Vacancies Reform Act (FVRA) permits acting officials to temporarily carry out the duties of certain offices, it imposes rigid constraints on the length of time during which a vacant office may be filled by acting officials. Based on the FVRA’s time limits, the office of ICE Director could not be filled by an acting official after August 1, 2019. Nonetheless, Albence continued purporting to be the Acting Director of ICE after that date, and he continued taking official actions under the authority of that office—including issuing ICE’s new policy on the deportation of U-visa applicants.
Because Albence issued the new policy without any legal authority to do so, his actions violated the Appointments Clause, the FVRA, and other federal statutes. Our lawsuit seeks a ruling that the new policy is therefore invalid.