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 petitions 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. While individuals were previously granted a stay of deportation if they had filed a proper U visa application and no “adverse conditions” existed, the new directive eliminated those protections. As a result, crime victims who applied for U visas with the support of law enforcement were at greater risk of being deported before their applications were processed, even though they could ultimately be granted a U visa, which would entitle them to remain in the United States.
Along with co-counsel Protect Democracy, CAC sued Albence and other federal officials on behalf of two nonprofit organizations: ASISTA Immigration Assistance, which trains and provides assistance to attorneys representing survivors of violence in immigration proceedings, and Sanctuary for Families, which represents gender violence survivors in deportation proceedings and assists them in obtaining lawful immigration status. Our lawsuit alleged that Albence had no authority to establish the new policy because he was occupying the role of ICE’s Acting Director illegally.
As our complaint explained, 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. 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 time limits on how long a vacant office may be filled by acting officials. Nonetheless, Albence continued purporting to be ICE’s Acting Director after the FVRA’s time limits expired. And among the actions he took under the authority of that position was approving ICE’s new policy on the deportation of U visa applicants.
Because Albence established ICE’s new policy without any legal authority to do so, his actions violated the Appointments Clause, the FVRA, and other federal statutes. Our lawsuit sought a ruling that the new policy was therefore invalid.
The parties briefed cross-motions for summary judgment, and in October 2020 the U.S. District Court for the District of Connecticut heard oral argument on those motions.
In January 2021, after the Biden Administration signaled a change in immigration enforcement priorities, the plaintiffs agreed to pursue settlement discussions. To facilitate those discussions, the parties agreed to a temporary stay of the court proceedings, with rules in place limiting ICE’s discretion to deport U visa applicants.
The plaintiffs later concluded, however, that the government was interpreting the stay agreement in ways that appeared contrary to its terms. As a result, the plaintiffs refused to agree to extend the stay beyond its expiration in June 2021.
The government then asked the court to extend the stay another 90 days, promising that ICE was reviewing its policies concerning stays of deportation and intended to issue new policies at some point in the future. The plaintiffs opposed that motion, and the court denied it in part, extending the stay only for another 35 days. On day 34, ICE’s current Acting Director approved a new policy concerning stays of deportation for U visa applicants, replacing the illegal policy that the plaintiffs had challenged.
ICE’s new policy, titled “Using a Victim-Centered Approach with Noncitizen Crime Victims,” establishes protections for U visa applicants that are analogous to the protections unlawfully eliminated by Matthew Albence in 2019. Absent exceptional circumstances in which an individual poses a national security threat or an articulable risk of causing physical harm, ICE will refrain from deporting or otherwise taking enforcement actions against noncitizens with pending, properly filed U visa applications.
In light of this new policy and its replacement of the illegal policy that the plaintiffs were challenging, the plaintiffs agreed to voluntarily dismiss the case.
February 13, 2020
CAC and Protect Democracy file complaintD. Conn. Complaint
April 10, 2020
CAC and Protect Democracy file amended complaintD. Conn. Am. Complaint
May 26, 2020
CAC and Protect Democracy file memorandum in support of plaintiffs’ motion for summary judgementD. Conn. SJ Memo
July 17, 2020
CAC and Protect Democracy file reply memorandum in support of plaintiffs’ motion for summary judgmentD. Conn. Reply Memo
October 5, 2020
The District Court for the District of Connecticut hears oral argument
October 12, 2020
CAC and Protect Democracy file supplemental briefD. Conn. Supp. Br.
October 19, 2020
CAC and Protect Democracy file supplemental reply briefD. Conn. Supp. Reply Br.
March 17, 2021
The parties agree to stay the case pending settlement discussionsMot. to Hold in Abeyance
July 8, 2021
CAC and Protect Democracy file an opposition to the defendants’ motion to renew the stayStay Opp.
August 10, 2021
ICE issues new directive replacing its unlawful U visa policy
August 27, 2021
The parties agree to voluntarily dismiss the case