SPANK!! JUDGE PUTS THE BRAKES ON ICE GUIDELINES SAYING TO DEPORT PEOPLE *ALREADY* IN THE APPLICATION PROCESS – CERTIFIES CLASSES!
by Anne P. Mitchell, Esq. – providing facts and truth about what’s going on with this administration and the law
First: HUGE hat tip to immigration attorney Magdalena Cuprys for pointing me to this case!
This is fantastic news: Judge Andre Birotte Jr. just took ICE to task over their revised “who can we deport next” guidelines (the “2025 Guidance”) that had them deporting people who, previous to the issuance of the 2025 Guidance, were *not* supposed to be deported because they had already applied to stay in the U.S..
To make matters worse, this was specifically affecting people who were and are victims of domestic violence, survivors of trafficking, and survivors of certain other crimes; these people were and are applying for immigration-related victim benefits. These are the “VAWA self-petition”, and the U and T visas.
As the Court explains in its 97-page opinion (included for Notes from the Front members), “To avoid potential immigration consequences for noncitizens pursuing these benefits, to encourage victims to come forward, and to fulfill the purposes of the victim-based benefits programs, Congress provided interim benefits including deferred action, work authorization, and other benefits during the often-lengthy pendency of these petitions.”
Put in plain English, this was a way for victims to escape their abusers and come to the U.S. and stay in the U.S. while they were completing the immigration process.
Prior to 2025, the prevailing policy with respect to ICE and those who had an active application for a VAWA self-petition, U visa, or T visa was, and I quote from the opinion, “to “refrain from taking civil enforcement action against” individuals “known to have a pending application” for “victim-based immigration benefits,” *and* in fact it directed ICE to “seek expedited adjudication of victim-based immigration applications and petitions.”
So, not get them out of here, quite the opposite, “do everything you can to get their applications finalized.”
In addition, under the 2025 Guidance, ICE implemented two policies: the De Facto Revocation Policy (ICE ignores deferred action orders), and the Blind Removal Policy (where ICE “detains or removes petitioners who have requested a stay of removal without first conducting a statutorily-required inquiry into whether the petitions present a prima facie case for approval”; called ‘Blind’ “because ICE executes them in ignorance of
the individual’s prima facie eligibility for approval of their pending petitions.”
For those who don’t know, ‘prima facie’ means ‘at first sight’, or, basically, the thing is obvious on its face.
As the Court points out, the actual text of the 2025 Guidance (also included for Notes from the Front members) says, among other things:
“Citing President Trump’s January 20, 2025, Executive Order (EO) 14159, Protecting the American People Against Invasion,10 “which states it is the policy of the United States to achieve the ‘total and efficient enforcement of [immigration] laws’ against all inadmissible and removable aliens,” the 2025 Guidance establishes that the following policies govern ICE officers’ enforcement actions towards individuals with pending victim-based benefit petitions: officers should (1) “coordinate and deconflict internally” and with law enforcement agencies “to ensure criminal investigative and other enforcement actions will not be compromised”; (2) “consult with” local ICE attorneys only “to ensure any such [civil enforcement] action is consistent with applicable legal limitations”; (3) need not consider a noncitizen being “a victim of a crime” as “a positive discretionary factor”; and (4) will not “routinely request expedited adjudications from USCIS,” but may do so on a case-by-case basis when “it is in ICE’s best interests.” ”
This is a perfect example of the interplay between executive orders, executive agencies (in this case ICE), and the law. Presidents issue executive orders – they are *not* law. Then executive (Federal) agencies implement the policies of the EO. Again, the EO is *not* law. Then either the courts construe the EO and adjudge it legal or not, *or* Congress passes a law dealing with the subject matter of the EO, or both.
So, the 2025 Guidance is *policy*, not law. Now, many of you have been with me long enough to guess what, among other things, the Court invokes. Say it with me:
The APA (a/k/a the Administrative Procedure Act)
This may be as clear an example of what the APA is as ever we’ve seen: It is a Federal law that dictates how government agencies (i.e. administrative agencies) implement policy. And who is empowered to enforce the APA? That’s right, the courts.
This particular case has several plaintiffs, including individuals and advocacy organizations. And those individuals included *people who had been deported” under the 2025 Guidance, while waiting for their U or T visa or VAWA self-petition to be granted.
So, here’s what the Court just did:
First, it *certified 3 classes*: with respect to anyone who has a pending U or T visa or VAWA self-petition:
1. Anyone who has a pending U or T visa or VAWA self-petition “who ICE detains or seeks to detain for civil immigration enforcement”. These people are known as “The Pending Petition Class”.
2. Any of those individuals who has granted deferred action based on a pending U or T visa petition and who, during the authorized period of deferred action, ICE detains, seeks to detain, *or removed* (this is important) without providing notice and an opportunity to be heard regarding potential revocation of their deferred action status. These people are known as “The Deferred Action Class”.
3. Any of those individuals who, since January 30, 2025, have been, are, or will be detained by ICE and who request or requested a stay of a final removal order prior to enforcement of that removal order. These people are known as “The Stay of Removal” class.
THEN the Court went on to order that:
The 2025 Guidance, and the De Facto Revocation and the Blind Removal Policy are all stayed. Period. Meaning that they are no longer in effect. Period.
AND
ICE is *enjoined* from preventing the individual plaintiffs whom they had wrongfully deported from re-entering the U.S. (at their same immigration status), and from deporting the individual plaintiffs who were still in the U.S. without first getting a determination of whether they are prima facie eligible for the visas for which they applied.
Notes from the Front members: The order and the 2025 Guidance are in your inbox now!
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P.S. If you actually read all the way to the bottom please leave a comment that includes the words “prima facie” – bonus points if you use them correctly in a sentence! :~) It will show me that my efforts aren’t in vain and that people actually *do* read these things, and it will drive those who just skim crazy wondering just why everyone is talking about a prima facie… something! ;~)
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