ASISTA v. Albence
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In February 2020, Protect Democracy and the Constitutional Accountability Center filed a lawsuit alleging that Matthew Albence, the purported Acting Director of Immigration and Customs Enforcement (ICE), was not legally serving in that position and that any actions he took under the authority of the office of ICE Director are therefore unlawful.
The lawsuit specifically challenged 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 standard for granting stays of removal, making it more difficult for applicants to fight deportation during the years-long wait for visa approval. The plaintiffs argued that the change was 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 of the Trump administration resigned on January 20, 2017. Thus, there had 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 only 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, and Sanctuary for Families, an organization, which, through its Immigration Intervention Project, represents and advocates on behalf of gender violence survivors by defending them against deportation and assisting them in applying for and obtaining lawful immigration status.
“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 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.