ICYMI: Important Policy & ASISTA Updates

As usual, there have been several policy updates over the last few weeks, from the rescission of the immigrant travel ban impacting family, employment and diversity visas to the Supreme Court’s decision to take up the public charge rule. Here are some other important policy updates and news from ASISTA.

• U.S. Citizenship Act of 2021 & Its Impact on Survivors
• New Interim ICE Guidance
• Administrative Advocacy
  
  
• ASISTA’s Comment on I-918 Forms
• ASISTA’s Comment on Policy Manual Chapters on Employment Authorization
  
  
• Litigation Updates
  
  
• Gonzalez v. Cuccinelli (4th Cir. U visa delay case)
• Amicus Brief in Litigation challenging EOIR’s harmful Administrative Closure Rule
  
  
• EOIR Updates
  
  
• EOIR Policy Manual
• New BIA Precedent Decision on VAWA Cancellation
  
  
• ASISTA in the News
• Upcoming ASISTA Trainings

1. U.S. Citizenship Act of 2021 & Its Impact on Survivors: On Thursday, February 18, 2021 the U.S. Citizenship Act of 2021 was introduced in the House by Representative Linda Sánchez and in the Senate by Senator Bob Menendez. ASISTA and our partners with the Alliance for Immigrant Survivors have prepared an overview of the bill with a discussion of the impact on survivors which you can view here.
   
   
2. Interim ICE Guidance: Last week ICE released new interim guidance on enforcement priorities which will be in place at least for the next 90 days. This new guidance broadens enforcement provisions contained in the January 20, 2021 memo.The guidance changes the public safety enforcement priority to encompass 1) those who have been convicted of an aggravated felony (as defined in the INA); 2) those “convicted of offense involving participation in a criminal street gang, as defined in 18 U.S.C. § 521(a), and 3) those not younger than 16 years of age and who intentionally participated in an organized criminal gang or transnational criminal organization to further the illegal activity of the gang or transnational criminal organization.”
   
   The guidance indicates that enforcement action may be taken outside these priorities but are subject to advance review, and spells out factors that may be considered in taking enforcement action outside the listed priority grounds. The guidance also instructs that attention should be exercised to individuals who are elderly, suffering from illness, or those with pending petitions for review on direct appeal from an order of removal; have filed only one motion to reopen removal proceedings, and such a motion either remains pending or is on direct appeal via a petition for review; or have pending applications for immigration relief and are prima facie eligible for such relief. In such cases, execution of removal orders should have a compelling reason and are to have approval from the Field Office Director. We encourage you to find more information about this guidance from our partners at NIPNLG and NIJC here.
   
   
3. Administrative Advocacy:
   
   a. ASISTA Comment I-918 Forms: On January 14, 2021, USCIS published a notice for comment on the U visa forms (I-918, Supplement A, Supplement B, and their associated instructions). While the agency did not propose any changes to the forms or their instructions, ASISTA submitted a comment recommending amendments to the forms and instructions to rectify and clarify issues that have arisen over time, including: the elimination of the signature requirement on the Supplement A for derivatives; the allowance of electronically reproduced signatures on all forms; and the elimination of language in the form instructions that USCIS could use to justify the blank spaces policy.
   
   b. USCIS Policy Manual Comment on Employment Authorization: On February 15, 2021 ASISTA submitted a comment in response to Policy Manual changes regarding the exercise of discretion in granting employment authorization based on deferred action or having a pending adjustment application. Even though the Policy Manual provisions had carve-outs for survivor based relief, we remain opposed to provisions that needlessly create barriers for employment authorization.

4. Litigation Updates

a. Gonzalez v. Cuccinelli: On January 14, 2021, the 4th Circuit published its opinion in Gonzalez v. Cuccinelli, a case in which several U visa applicants had sued USCIS over the years-long delay in the adjudication of their applications. The results were mixed: The Court found that it lacked jurisdiction to review USCIS’s failure to issue pre-waiting list employment authorization under INA 214(p)(6) and that the repeal of 8 CFR § 274a(13)(d) was retroactive; however, it did overturn the district judge’s dismissal of the claim regarding USCIS’s failure to make a waiting list determination for the plaintiffs. ASISTA and the Tahirih Justice Center submitted an amicus brief on this case. 

b. Administrative Closure Rule Amicus brief: On February 5, 2021 ASISTA, API-GBV and partner organizations filed a brief in support of the plaintiffs in the case CLINIC et al v. Executive Office for Immigration Review demonstrating the impact that eliminating administrative closure would have on survivor-based claims. We are grateful for the incredible work of our pro bono team at Morgan Lewis & Bockius, LLP on this effort. Read our amicus brief here. 

5. EOIR Updates

a. EOIR Policy Manual On January 13, 2021, EOIR released its own policy manual to compile and update existing policy guidance regarding entry of appearance, filings, Immigration Court and BIA Practice Manuals, operating policies and procedures and more. 

b. BIA Precedent Decision on VAWA Cancellation of Removal One February 24, the BIA issued a decision in Matter of L-L-P- The BIA held, “… that an applicant for special rule cancellation of removal under section 240A(b)(2) based on spousal abuse must demonstrate both that the abuser was his or her lawful spouse and possessed either United States citizenship or lawful permanent resident status at the time of the abuse, even if the abuser’s spousal status, citizenship, or lawful permanent resident status was later terminated or revoked, or the abuser can no longer use an immigration benefit to control the applicant… An abusive spouse must have the actual ability to affect an alien’s immigration status in order to threaten the alien in the manner contemplated by the VAWA.”

6. ASISTA in the News ASISTA has been providing assistance to our member organization, the Pennsylvania Immigration Resource Center, and their pro bono partner, David Freedman, who are waging an effort in federal court to force USCIS to adjudicate long-delayed U visa cases. This week, the Philadelphia Inquirer featured a story on their litigation campaign which includes a quote from ASISTA’s senior legal counsel, Amy Cheung.

7. ASISTA’s 2-day training on March 17-18, 2021: Register now for ASISTA’s Legal Remedies for Immigrant Survivors, Introductory Series Part II: Preparing the Case. In Part II of our skills-based introductory seminar series, participants will learn to effectively prepare survivor-based petitions for immigration status. Participants will have the opportunity to practice these skills through interactive discussions and hands-on activities. This course is intended for legal advocates at agencies that serve domestic violence and sexual assault survivors, new immigration practitioners, and legal staff. Register Today!

As always, thank you for all you do on behalf of survivors and their families. 

The ASISTA Team