The Trump administration has quietly altered its handling of visas granted to immigrants who cooperate with criminal investigations, allowing people to be deported even while they are waiting for their visas.
The change to U visas will make immigrants far less likely to report serious crimes, say immigration attorneys, who argue it also reflects the Trump administration’s efforts to deport as many immigrants as they can from the United States.
“This is going to have a chilling effect,” Eileen Blessinger, a Falls Church, Va.-based immigration attorney, told The Hill, because “by applying, you’re essentially reporting yourself to ICE but now there’s a risk that ICE might pick you up.”
The change was announced in a revised Immigration and Customs Enforcement (ICE) directive released on Aug. 2.
The directive allows ICE to give permission for people to stay in the country as they await their U visas, which is a class of visa given to people who are cooperating with criminal investigations. But it also allows ICE to deport pending U visa applicants at their discretion.
Applications for U visas can take up to four years. The government issues 10,000 per year but puts no limit on the number of visas that can be issued to spouses and children of applicants or to parents of applicants who are themselves under 21.
The directive reserves the right for the agency to “review the totality of the circumstances, including any favorable or adverse factors, and any federal interest(s) implicated and decide whether a Stay of Removal or terminating proceedings is appropriate.”
ICE adds in the directive that it will “exercise its discretion” in determining whether to grant stay of removal requests, but cautions that the agency “no longer exempts classes or categories of removable aliens from potential enforcement.”
In a statement to The Hill, an ICE spokesperson defended the change as necessary due to the volume of applications.
“As the number of U visa petitions submitted increased, this process became burdensome on both agencies and such determinations didn’t reflect a qualitative assessment of any assistance provided to law enforcement,” the spokesperson said.
Blessinger said the new directive piggybacks on another policy change that began about a year ago, when United States Citizenship and Immigration Services ended its practice of waiving fees for U visa applicants. This change cut down the number of people who could even seek out U visas.
While the application itself does not cost any money, applicants with past criminal or immigration violations must pay a $585 fee to apply for a waiver.
Blessinger told The Hill that her firm, Blessinger Legal, had a client who had been deported twice before whose daughter was a victim of child sexual abuse and who had cooperated with the investigation.
The man was able to file for a U visa, which was eventually approved, and will be able to stay in the United States and continue to cooperate with the sexual abuse investigation.
If he had applied for the U visa under the terms of the new ICE directive, however, he could have been deported.
Another of her clients, Blessinger said, is a Salvadoran immigrant and victim of domestic violence who came to the U.S. in 2004 and has been detained in Caroline Detention Facility in Fort A.P. Hill, Va., after failing to appear in court in El Paso, Texas, after receiving a notice to appear that Blessinger said did not include her hearing’s date or time.
“She missed the court hearing and got a deportation order and the motion to reopen was denied, but while it was pending we were able to get U visa certification signed off saying she was a victim of domestic violence and cooperated with the investigation,” Blessinger told The Hill.
“She’s not a criminal, she’s someone that in the past would be released on an ankle bracelet,” added Blessinger.
“The U visa was created in 2000 by a bipartisan majority in Congress with two important purposes: one, to be a tool for law enforcement to investigate or prosecute criminal activity, and the other is to provide protection for immigrant survivors in coming forward and seeking protection,” Cecelia Friedman Levin, senior policy counsel at ASISTA Immigration Assistance, told The Hill.
“What we see here with new ICE policies that impact the U visa program is that some of these changes really contravene the purpose that Congress created these protections for,” she added.
Complicating the process further, Friedman Levin said, ICE has yet to publicly issue the full guidance for the new U visa policy.
“It’s leaving everyone in the dark in terms of what they’re actually supposed to do,” she said, calling the change “just another way of just continued and deliberation erosion of access to protection.”
Kristian Ramos, communications director at the immigrant advocacy group Define American, told The Hill the change was indicative of the administration’s general handling of long-standing immigration policy.
“This administration’s reckless changing of long-standing laws has very human casualties,” Ramos told The Hill.
The client “came forward under the auspices that the law would protect her from deportation and it’s incredibly unfair to literally just change the rules on someone who is just trying to get help,” he added.