Interim Guidance on Civil Immigration Enforcement Actions Involving Current or Potential Beneficiaries of Victim-Based Immigration Benefits and Recission of ICE Directive 11005.3: Using a Victim-Centered Approach with Noncitizen Crime Victims (December 2, 2021) & ICE Policy Statement 10076.1: Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (February 2025)
NOTE: This updated guidance does not mean that the U and T visa programs have been cancelled. These protections were created by Congress and the Administration cannot unilaterally take them away.
At the end of January, there were reports on social media that Immigration and Customs Enforcement (ICE) had issued new policy guidance to its employees entitled “Interim Guidance on Civil Immigration Enforcement Actions Involving Current or Potential Beneficiaries of Victim-Based Immigration Benefits”. According to the leak, the new Interim Guidance canceled certain prior ICE instructions on enforcement against immigrant survivors of crime, trafficking, or abuse, and replaced them with new guidance.
By mid-February, the full contents of the memo that went to all ICE employees were released and it confirmed most of what we already knew. The memo provides new guidance for immigration enforcement actions involving beneficiaries of victim-based immigration benefits or those known to have pending applications or petitions for such benefits (including U and T visas and VAWA relief). The new guidance also rescinded ICE Directive 11005.3: Using a Victim-Centered Approach with Noncitizen Crime Victims (December 2, 2021) and ICE Policy Statement 10076.1: Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011).
Among other changes, this new interim guidance directly contradicts the previous Victim-Centered Approach memo by no longer requiring ICE to affirmatively try to identify that a person is a victim of a crime or to consider the fact that a person may be a survivor of crime when determining whether to take an enforcement action against them. It also states that ICE will no longer coordinate with USCIS to seek expedited adjudication of victim-based immigration applications and petitions.
In real terms, this could mean that survivors who have already applied or are eligible for victim-based immigration benefits like the U and T visa may be apprehended by ICE and face further challenges exercising their rights and obtaining the relief they are eligible for, relief that often means the difference between safety and further harm.
Impact on Survivors
This new interim guidance alongside other recent policy shifts like calls for increased entanglement between local and state law enforcement and ICE as well as the recission of the protected areas memo, creates an environment where immigrant survivors of domestic violence, sexual assault and other crimes hesitate to come forward for help. It also increases the likelihood that when they do reach out, they may not receive the help they need.
For further practice guidance, please see this Practice Note released by AILA, ASISTA, and AIS.
