Can ICE Deport You If You Have a Pending VAWA, U Visa, or T Visa Application?

You may be worried that ICE could deport you before USCIS decides your case because of 2025 policy that directed ICE to enforce immigration laws against all removable and inadmissible noncitizens, but that policy has now been halted (temporarily for now) by a judge’s order in an ongoing case.

The court order in Immigration Center for Women and Children v. Noem has temporarily restored protections for immigrant victims of crime with certain pending petitions. If you meet the requirements of any of the categories, the court’s order may limit ICE’s ability to detain or remove certain individuals covered by the order. This is a return to pre-2025 policy of not deporting immigrants who are victims of crime while their U visa, T visa, or VAWA petition was still pending. This order is not a final decision in the case and the government may appeal the order.

Who is Protected by the Court’s Order?

This order applies to you if you are an immigrant who has been a victim of a crime and has a pending U visa, T visa, or VAWA petition. This order further specified that it applies also if USCIS has granted deferred action to you because you have one of those pending petitions. If you have a pending U visa or T visa petition and have been or will be detained by ICE after January 30, 2025 you can be protected if you requested or do request a stay of your final removal order before the government enforces that order. The protections arise from the court order and class definitions rather than through a separate application process, but individuals should consult counsel regarding whether they fall within a protected class.

What protections were restored?

The government has been ordered by the court to return to its prior policy of not detaining or removing those with pending U visa or T visa petitions. The court’s order requires ICE to follow the reinstated guidance and limits enforcement actions against covered U- and T-petitioners in the circumstances described by the order. If you have been granted deferred action status, then ICE may not be able to detain, seek to detain, or remove you without notifying you and allowing you to defend against a potential revocation of your deferred action status. ICE cannot ignore this status and should honor the grant of deferred action until the petition for your U visa or T visa has been fully reviewed by USCIS.

Which ICE policies were stopped?

For the time being, ICE has been ordered to stop its “De Facto Revocation Policy” where they effectively revoked the pending status of U visa and T visa petitions by removing, arresting, or detaining people who had been granted deferred action by USCIS. The court also ordered ICE to halt (for the time being) its “Blind Removal Policy” where ICE removed anyone with a final removal order regardless of if they had a pending U visa or T visa application. The court order requires ICE to return to their previous policy of not taking enforcement action against someone until after USCIS has had the opportunity to conduct a full review of that person’s U or T visa petition.

What should you do if ICE contacts you?

Do not ignore notices from ICE, USCIS, or other government agencies. If you are contacted by ICE, you should tell your attorney immediately. Make sure you have proof of your pending U or T visa petition and ask your attorney whether this court order (from Immigration Center for Women and Children v. Noem) applies to your case. If you have an ICE check-in scheduled, prepare for it beforehand by talking with your attorney about it and preparing a letter explaining how this court order protects you. If this case does apply to you, then the policy the court ordered entitles you to a favorable review for discretion by the government. Although it is still discretionary (that is, optional) for the government to choose not to take enforcement action against you, the policy the court reinstated instructs ICE to exercise broad prosecutorial discretion and generally avoid removing individuals (particularly victims or witnesses) unless circumstances make removal necessary. See ICE Policy 11005.3 (2021).” The 2021 Directive defines exceptional circumstances as existing when there are national security concerns or when the “noncitizen poses an articulable risk of death, violence, or physical harm to any person.” (2021 Directive at 3.4).

If have a pending U or T visa petition and you have a final removal order, you may want to consider asking your attorney about applying for a stay of removal. This court order requires ICE to determine eligibility before deciding requests for stays of removal. Those determinations can grant an immediate stay of removal. Individuals with final removal orders should consult counsel about seeking a stay of removal because the court’s order requires additional review before removal in certain cases.

If you are someone who this order applies to and have a deferred action from USCIS but are detained, you should contact your attorney to notify ICE and the U.S. Attorney to be released due to the court order. If ICE decides that you are to be detained even though you have one of the protected statuses they must request that the review of your pending U visa or T visa petition be expedited by USCIS.(2021 Directive at 5.4(a)). If the government is not responsive to your attorney’s requests or if it does not follow the courts orders while they are in effect, your attorney can contact the attorneys who obtained this court order. (ICWC_ClassCounsel@centerforhumanrights.org)

What happens next?

This order is not a final order, this was a temporary order to stop the described ICE policies while the lawsuit is being decided. The government is likely to appeal it, but the original people who sued will continue to argue against the ICE policies until a final judgment is reached.

Sources:

https://www.centerforhumanrights.org/post/icwc-v-noem-practice-advisory-toolkit

https://www.ice.gov/doclib/foia/policy/11005.3_UsingVictimCenteredApproachNoncitizenVictims.pdf

Can ICE Deport You If You Have a Pending VAWA, U Visa, or T Visa Application?