Immigration and Citizenship

RELEASE: ICE Policy Change Made Illegally Under Matthew Albence Prompts Lawsuit

“This Administration should not be allowed to thumb its nose at the Constitution and laws passed by Congress to govern appointments—both of which assign the Senate a critical role in determining who is making immigration policy as the head of ICE.” — CAC Chief Counsel Brianne Gorod

HARTFORD, CT—Today, Protect Democracy and the Constitutional Accountability Center filed a lawsuit alleging that Matthew Albence, the purported Acting Director of Immigration and Customs Enforcement (ICE), is not legally serving in that position and that any actions he takes under the authority of the office of ICE Director are therefore unlawful.

The lawsuit specifically challenges a new ICE policy altering the treatment of applicants for U visas, a legal status for noncitizen survivors of domestic violence, sexual assault, and other crimes who are assisting law enforcement in the investigation or prosecution of the crimes against them. In August 2019, ICE, at the direction of Albence, altered the program to make it more difficult for applicants to fight deportation during the years-long wait for visa approval. The plaintiff argues that the change is unlawful because, at the time he enacted it, Albence was serving illegally in violation of the Appointments Clause of the Constitution and related federal statutes.

The Appointments Clause and federal law require that the Director of ICE be confirmed by the Senate. The last Senate-confirmed Director resigned on January 20, 2017. Thus, there has not been a Senate-confirmed ICE Director for more than three years.

The Federal Vacancies Reform Act (FVRA) allows acting officers to temporarily carry out the duties of a federal office before it is filled, through the Constitution’s mechanism of presidential nomination and Senate confirmation. However, the law allows someone to serve in an “acting” capacity for an absolute maximum of 210 days after the failure of a second nomination for the position—a date which had passed before Albence issued the directive changing the U visa policy. The lawsuit also names the Acting Secretary of the Department of Homeland Security and President Trump for allowing Albence to serve illegally.

“The Framers gave the Senate a role in appointments precisely so that the President wouldn’t be able to install officials whose only loyalty is to the White House,” said Rachel Goodman, Counsel for Protect Democracy. “That an unconfirmed Acting Director of ICE is dismantling an effective, congressionally-designed program underscores their wisdom.”

“It is deeply disturbing that ICE has been without a confirmed head for more than three years,” continued Brianne Gorod, Chief Counsel for the Constitutional Accountability Center. “This Administration should not be allowed to thumb its nose at the Constitution and laws passed by Congress to govern appointments—both of which assign the Senate a critical role in determining who is making immigration policy as the head of ICE.”

Protect Democracy and the Constitutional Accountability Center filed this lawsuit in the U.S. District Court for the District of Connecticut on behalf of ASISTA Immigration Assistance, an organization that fights for the dignity of immigrant survivors of violence in part by training and supporting attorneys who represent them.

“The U visa was created as a bipartisan tool to make communities safer and to provide protection for survivors who come forward. ICE must be held accountable for violating the law and blocking immigrant survivors of violence from gaining safety and justice,” said Cecelia Friedman Levin, Policy Director of ASISTA Immigration Assistance.

BACKGROUND ABOUT THE FEDERAL VACANCIES REFORM ACT OF 1998

Congress passed the FVRA to bridge leadership gaps created by the appointment and confirmation process. The FVRA specifies who is eligible to serve in an acting capacity for a limited period of time before a new official is confirmed.

Presidents of both parties have evaded the letter and spirit of the law, but there have been unprecedented abuses under the current Administration. As of February 2019, 169 positions for which Senate confirmation is required have no nominee, and President Trump has repeatedly violated the FVRA by installing acting officials in positions that require Senate confirmation. In November of last year, Protect Democracy sued USCIS over Kenneth Cuccinelli’s appointment as acting director of United States Citizenship and Immigration Services, which was illegal under the FVRA because he met none of its eligibility criteria. Additionally, earlier last year, Protect Democracy and the Constitutional Accountability Center sued on behalf of Members of Congress to challenge President Trump’s designation of Matthew Whitaker to serve as Acting Attorney General.

BACKGROUND ABOUT THE U VISA PROGRAM

According to USCIS:

The U nonimmigrant status (U visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity. The legislation also helps law enforcement agencies to better serve victims of crimes.

According to a national survey conducted in 2011 by the National Immigrant Women’s Advocacy Project at American University, more than 75 percent of the U visa cases filed nationally were based on domestic violence, sexual assault, or human trafficking.

#

Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at www.theusconstitution.org.

##

Protect Democracy is a nonpartisan nonprofit organization dedicated to preventing American democracy from declining into a more authoritarian form of government.

###

More from Immigration and Citizenship

Immigration and Citizenship
U.S. Court of Appeals for the First Circuit

Ryan v. ICE

In Ryan v. ICE, the U.S. Court of Appeals for the First Circuit is deciding whether U.S. Immigration and Customs Enforcement (ICE) officers may make civil immigration arrests in and around courthouses.
Immigration and Citizenship
U.S. Court of Appeals for the First Circuit

Pereira Brito v. Barr

In Pereira Brito v. Barr, the U.S. Court of Appeals for the First Circuit is considering whether the government may incarcerate someone without bail during deportation proceedings without showing that the person would likely abscond or...
Immigration and Citizenship
U.S. Court of Appeals for the Second Circuit

New York v. Barr

In New York v. Barr, the United States Court of Appeals for the Second Circuit is considering whether the court should rehear en banc a case about whether the United States Attorney General can impose...
Immigration and Citizenship
U.S. Court of Appeals for the Seventh Circuit

City of Evanston v. Barr

In Evanston v. Barr, the United States Court of Appeals for the Seventh Circuit is considering whether the United States Attorney General can impose funding conditions on local jurisdictions that receive certain federal funding in...
Immigration and Citizenship
U.S. Court of Appeals for the Second Circuit

Velasco Lopez v. Decker

In Velasco Lopez v. Decker, the U.S. Court of Appeals for the Second Circuit is considering whether the government may incarcerate someone without bail during deportation proceedings without showing that the person would likely abscond or...
Immigration and Citizenship
January 28, 2020

Dems Urge 9th Circ. To Reject ‘Indefinite’ Detention Of Minors

Law360
(Article behind paywall.)
By: Dayna Zolle, By Jack Queen