State of Texas et al v. United States of America et al

Filing 64

REPLY in Support of 5 Opposed MOTION for Preliminary Injunction, filed by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Attachments: # 1 Exhibit Ex 1, # 2 Exhibit Ex. 2, # 3 Exhibit Ex. 3, # 4 Exhibit Ex. 4, # 5 Exhibit Ex. 5, # 6 Exhibit Ex. 6, # 7 Exhibit Ex. 7, # 8 Exhibit Ex. 8, # 9 Exhibit Ex. 9.a, # 10 Exhibit Ex. 9.b, # 11 Exhibit Ex. 10.a, # 12 Exhibit Ex. 10.b, # 13 Exhibit Ex. 10.c, # 14 Exhibit Ex. 10.d, # 15 Exhibit Ex. 10.e, # 16 Exhibit Ex. 10.f, # 17 Exhibit Ex. 10.g, # 18 Exhibit Ex. 10.h, # 19 Exhibit Ex. 10.i, # 20 Exhibit Ex. 10.j, # 21 Exhibit Ex. 10.k, # 22 Exhibit Ex. 10.l, # 23 Exhibit Ex. 10.m, # 24 Exhibit Ex. 10.n, # 25 Exhibit Ex. 10.0, # 26 Exhibit Ex. 10.p, # 27 Exhibit Ex. 10.q, # 28 Exhibit Ex. 10.r, # 29 Exhibit Ex. 10.s, # 30 Exhibit Ex. 11, # 31 Exhibit Ex. 12, # 32 Exhibit Ex. 13, # 33 Exhibit Ex. 14, # 34 Exhibit Ex. 15, # 35 Exhibit Ex. 16, # 36 Exhibit Ex. 17, # 37 Exhibit Ex. 18, # 38 Exhibit Ex. 19, # 39 Exhibit Ex. 20, # 40 Exhibit Ex. 21, # 41 Exhibit Ex. 22, # 42 Exhibit Ex. 23, # 43 Exhibit Ex. 24, # 44 Exhibit Ex. 25, # 45 Exhibit Ex. 26, # 46 Exhibit Ex. 27, # 47 Exhibit Ex. 28, # 48 Exhibit Ex. 29, # 49 Exhibit Ex. 30, # 50 Exhibit Ex. 31, # 51 Exhibit Ex. 32, # 52 Exhibit Ex. 33, # 53 Exhibit Ex. 34, # 54 Exhibit Ex. 35)(Oldham, Andrew)

EXHIBIT 34

App. 1054

U.S. Department of Homeland Security
Citizenship and Immigration Services

Office of Associate Director of Operations

425 I Street NW
Washington, DC 20536

OCT ·. 8 2003

MEMORANDUM FOR
FROM:

SUBJECT:

cto ' \T.,t;'J~K-1'1:'

VICE CENTER

"'1/Vl

illiam R.

C ntralization of Interim Relief For
U Nonirnrnigrant Status Applicants

Background
On October 28, 2000, Congress passed the Victims of Trafficking and Violence Protection
Act (VTVPA), Pub. L. 106-386. 1 The VTVPA created the U nonimmigrant status, a new
non immigrant classification for victims of specific crimes. This nonirnrnigrant status was created
to strengthen the ability oflaw enforcement agencies to detect, investigate and prosecute cases of
domestic violence, sexual assault, trafficking of persons and other criminal activity of which
aliens are victims, while offering protection to victims of such offenses. It provides an
immigration mechanism for cooperating victims to remain temporarily in the United States to
assist in investigations and/or prosecutions. It is available to victims of certain criminal activity
and their families, and is limited to 10,000 principals per year.
Regulations implementing this new nonimmigrant status are currently in the clearance
process. In an effort to provide interim relief for this vulnerable population, the Office of
Programs issued interim guidance in August 2001, which directed that no one who appeared to
be eligible to apply for U nonimmigrant status be removed from the United States until he/she
has had the opportunity to avail him/herself of the provisions of the VTVPA. It further
instructed field offices to use existing mechanisms (parole, deferred action, and stays of removal)
to achieve this objective.
1

The sections of the VTVPA pertaining to U nonimrnigrant status are codified at sections 101(a)(I5)(U), 214(0),
and 245(1) of the Immigration and Nationality Act (INA).

App. 1055

Memorandum for Director, Vermont Service Center
Subject: Centralization oflnterim Relief For U Nonimmigrant Status Applicants

Page 2

Since this guidance was issued, it has become apparent that until the regulations
implementing the U nonimmigrant status are published, a more unified, centralized approach is
needed in the interim relief process. Many field offices have been unsure how to proceed in
granting interim relief, which has resulted in inconsistent treatment of potential U nonimmigrant
status applicants. It is for these r~asons that the U nonimmigrant status interim relief process
will be centralized at the Vermont Service Center (VSC) effective immediately.
Centralization of Interim Relief Process

The VSC will serve as the "clearinghouse" for early-filed applications and will have
jurisdiction to assess deferred action in early-filed U nonimmigrant status cases. Upon receipt of
a request for interim relief, the VSC will consider the facts of each case and determine if deferred
action is appropriate. Each decision should be considered individually, based on all the facts
present. Upon authorizing deferred action, the center director will advise the alien, by letter, of
the action taken and advise him or her of eligibility to request employment authorization. The
center director will include a copy of a G-312 in the alien's A file and maintain that file for
docket control.
Deferred action shall not be assessed in those cases where the applicant is clearly ineligible
for U nonimmigrant status or is an aggravated felon, and those cases should be referred to the
Bureau of Immigration and Customs Enforcement (ICE) for possible issuance of a Notice to
Appear. If the VSC determines that the case is not suitable for deferred action, the alien should
be notified of that decision by letter.
By their nature, U nonimmigrant status cases generally possess factors that warrant
consideration for deferred action. In some cases, however, there may be factors present that
would militate against deferred action; cases should therefore receive individual scrutiny. The
VSC should maintain records of all assessments of deferred action for statistical and tracking
purposes. In addition, a process for periodic review of the deferred action decisions made by the
VSC is planned. Upon publication of the regulations implementing the U nonimmigrant status,
the VSC will send a letter informing early filers to submit an application on the proper form, and
monitor the early-filed list to determine whether those assessed deferred action have applied.
The VSC will terminate deferred action and refer those who fail to apply within the timeframe
established by the regulation to ICE for possible issuance of a Notice to Appear, or for removal.
Eligibility to apply for U nonimmigrant status

Before determining whether to grant a form of interim relief, VSC personnel must first
determine whether the alien adequately demonstrates that he/she may possibly be eligible to
apply for U nonimmigrant status when regulations are issued. This would be demonstrated by
the submission ofprima facie evidence of each eligibility requirement. In other words, the alien
must produce sufficient evidence to render reasonable a conclusion that the alien may be eligible
for U nonimmigrant status when regulations are issued implementing that status. This is not a

App. 1056

Memorandum for Director, Vermont Service Center
Subject: Centralization of Interim Relief For U Nonimmigrant Status Applicants

Page 3

determination that an alien is or is not eligible to apply, or an adjudication of the claim itself. It
is a conclusion reached by examining the documents accompanying the request for interim relief
based upon perceived eligibility.
The four basic eligibility requirements that an alien must satisfy in order to be classified as a
principal U nonimmigrant are set out in the VTVP A. Therefore, in order to be eligible to apply
for interim relief, an alien must present evidence demonstrating that:
1.

He/she has suffered substantial physical or mental abuse as a result of having
been a victim of certain criminal activity;

2.

He/she (or in the case of an alien child under the age of 16, the parent,
guardian, or next friend of the alien) possesses information concerning that criminal
activity;

3.

He/she (or in the case of an alien child under the age of 16, the parent, guardian, or next
friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a
Federal, State, or local law enforcement official; to a Federal, State; or local prosecutor;
to a Federal or State judge; to the INS; or to other Federal, State, or local authorities
investigating or prosecuting the criminal activity; and

4.

The criminal activity described violated the laws of the United States or occurred in the
United States (including in Indian country and military installations) or the territories
and possessions of the United States.

The criminal activity referred to above is listed at INA§ 101(a)(l5)(U)(iii). It is that
involving one or more of the following or any similar activity in violation of Federal, State, or
local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive
sexual contact; prostitution; sexual exploitation female genital mutilation; being held hostage;
peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint;
false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness
tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any
of the above mentioned crimes.
When considering whether an alien has presented sufficient evidence demonstrating he/she
may be eligible to apply for U nonimmigrant status and thus eligible to request a form of interim
relief, VSC personnel must examine each of the U nonimmigrant status eligibility requirements,
taking into consideration the guidance below.
Law enforcement certification
The possible U nonimmigrant status applicant does not have to be identified to the VSC
through a law enforcement official. However, any request for interim relief from a possible U

App. 1057

Memorandum for Director, Vermont Service Center
Subject: Centralization oflnterim Relief For U Nonimmigrant Status Applicants

Page 4

nonimmigrant status applicant must be accompanied by some form of certification from a law
enforcement official attesting to the fact that the alien has been, is likely to be, or is being helpful
in the investigation or prosecution of criminal activity designated in the VTVP A. There
currently is no official DBS-created law enforcement certification form. Therefore, the law
enforcement official certification may be in the form of a letter, or a form created by a nongovernmental organization or an applicant's attorney or representative, and should:
•
•
•

State that the person was a victim of one or more of the crimes listed in the statute;
Identify the crime(s); and
Verify the victim is, has been, or is likely to be helpful to the prosecution or investigation
of the criminal activity.

Whatever form the certification takes, it must in all cases be signed by the law enforcement
official investigating or prosecuting the criminal activity. The certification submitted must have
been signed within six months immediately preceding the submission of the request for interim
relief. In addition, the VTVP A does not require the U nonimmigrant status applicant to assist in
both the investigation and prosecution of the criminal activity; the assistance offered by the
possible U nonimmigrant status applicant may be in either the investigation or the prosecution,
or both.
It is important to note that the law enforcement certification does not have to come from a
Federal law enforcement official. Section 214(o)(l) of the INA identifies from whom a
certification may be accepted. The certification may come from a Federal, State or local law
enforcement official, prosecutor, judge or other Federal, State, or local authority investigating the
criminal activity. Further development of the range of criminal activity involved and the types of
certifying government officials will occur in the rulemaking process. At this point, VSC
personnel should keep in mind that circumstances will vary from case to case, and it is better to
err on the side of caution than to remove a possible U nonimmigrant status applicant.

Time element
The fact that the criminal activity occurred a number of years prior to the current request or
that the case in which the applicant is the victim is closed is not a determinative factor at this
stage. The statute contemplates that a person may be eligible for U nonimmigrant status as a
result of having been a victim of a crime that occurred at some point in the past. Until there are
regulations interpreting this statutory requirement, VSC personnel should not deny interim relief
based on the fact that the criminal activity at issue occurred prior to the enactment date of the
VTVPA.
Levelofharm
The VTVPA does not specifically reserve U nonimmigrant status solely for individuals who
have suffered the most harm. As with any form of immigration benefit with a harm component,
there are some applicants who present cases with more harm than others. Whether the level of
harm meets the statutory requirement of substantial physical or mental abuse will be a question

App. 1058

Memorandum for Director, Vermont Service Center
Subject: Centralization oflnterim Relief For U Nonimmigrant Status Applicants

Page 5

Bureau of Citizenship and hnmigration Services (CIS) officers adjudicating the U nonimmigrant
status application will decide in accordance with the regulations once they are promulgated.
Therefore, for interim relief purposes, "substantial physical or mental abuse" should be broadly
interpreted. Similarly, the fact that the criminal activity involved in the case was classified as a
misdemeanor as opposed to a felony should not be a factor in determining eligibility for interim
relief.
Elitzibility for Interim Relief

Once an individual is determined to have submitted primafacie evidence of his/her eligibility
for U nonimmigrant status, VSC personnel must then decide whether to exercise discretion and
assess deferred action. Absent adverse factors, deferred action will be assessed following
established CIS guidelines. Officers should note that ifthe alien is in removal proceedings or
has a final removal order, the VSC does not have jurisdiction to assess deferred action. The
applicant shall be notified in writing if his/her submission does not establish aprimafacie case
or if deferred action cannot be assessed due to lack of jurisdiction.
It is important to note that deferred action does not confer any immigration status upon an
alien. Since deferred action is not an immigration status, no alien has the right to deferred action.
Deferred action does not preclude the CIS from commencing removal proceedings at any time
against an alien.

Employment Authorization

Although deferred action is not an immigration status, an alien may be granted work
authorization based on deferred action in his or her case pursuant to 8 C.F.R. 274a.12(c)(14). If
the alien is placed in deferred action, the VSC will notify the alien that he or she may submit an
I-765, Application for Employment Authorization. After the initial deferred action decision and
issuance of a one-year employment authorization document, the VSC will hold these files and
review the deferred action decision upon each application for extension of work authorization.
Derivative U Nonimmigrant Status Applicants

To avoid extreme hardship, the VTVP A authorizes CIS to provide U nonimmigrant status to
the spouses, children, and, in the case of a child under the age of 16, the parents ofU
nonimmigrants. This would require certification by a government official that an investigation
or prosecution would be harmed without the assistance of the spouse, child, or in the case of an
alien child, the parent of the alien.
Family members who may be eligible to receive derivative U nonimmigrant status and who
are present in the United States should not be removed, and shall be eligible for interim relief.
The eligible family member(s) must demonstrate extreme hardship if removed from the United
States and must also submit a certification of a government official that an investigation or
prosecution would be harmed without the spouse, child, or parent of the principal. This
certification must comply with the guidelines outlined in this memo.

App. 1059

Memorandum for Director, Vermont Service Center
Subject: Centralization of Interim Relief For U Nonimmigrant Status Applicants

Page 6

Reporting Requirements

Deferred action is a resource utilization tool. Therefore, the VSC should maintain statistics
on deferred action cases to ensure that it is being used appropriately. These statistics are to be
maintained on a current basis so that data can be readily extracted upon request.
Statistics should be maintained in the following categories:
•

number of requests in deferred action category at the beginning of the fiscal year;

•

number of requests for which deferred action is assessed;

•

number ofrequests for which deferred action is denied;

•

number of requests removed from deferred action category;

•

number of deferred action requests pending at the end of the fiscal year.

Periodic Review

The VSC adjudicators assigned to the early-filed U applications should conduct interim
reviews to determine whether deferred action cases should be continued or the alien removed
from the deferred action category. Reviews must determine if there is any change in the
circumstances of the case. Results of the review and a recommendation to continue or terminate
deferred action would be reported to the center director via memorandum. The center director
should endorse the memorandum with his or her decision and return it for inclusion in the alien's
file.
Termination of Deferred Action

During the course of the periodic review, or at any other time ifthe VSC determines that
circumstances of the case no longer warrant deferred action, the VSC should recommend
termination. Termination may occur for conduct that occurs after the issuance of interim relief
(i.e. conviction of a violent crime), for conduct or a condition not disclosed prior to issuance of
interim relief, or based on affirmative evidence that the alien unreasonably refused to provide
assistance in a criminal investigation or prosecution. The VSC should notify the alien of the
decision to terminate by letter. Such a detennination is not appealable. Upon termination of
deferred action, any relating employment authorization will be revoked in accordance with the
standard revocation procedures set out in 8 CFR § 2 74a. l 4(b).
Record Keeping And Confidentiality
It is imperative that documentation be maintained on all U nonimmigrant status applicants.
As such, information about the possible applicant, including all pertinent information
surrounding the applicant's circumstances, must be maintained in the alien's A-file. If

App. 1060

Memorandum for Director, Vermont Service Center
Subject: Centralization of Interim Relief For U Nonimmigrant Status Applicants

Page 7

no A-file exists for the individual, one should be created.
Officers should keep in mind that section 384 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA) 3 is applicable to all U nonirnrnigrant status
cases. Section 384 prohibits employees from making an adverse determination of admissibility
or deportability of an alien using information provided solely by:
1) a spouse or parent who has battered the alien or subjected the alien to extreme
cruelty;
2) a member of the spouse's or parent's family residing in the same household as the
alien who has battered the alien or subjected the alien to extreme cruelty when the
spouse or parent consented to or acquiesced in such battery or cruelty;
3) a spouse or parent who has battered the alien's child or subjected the alien's child to
extreme cruelty (without the active participation of the alien in the battery or
extreme cruelty);
4) a member of the spouse's or parent's family residing in the same household as the
alien who has battered the alien's child or subjected the alien's child to extreme
cruelty when the spouse or parent consented to or acquiesced in such battery or
cruelty and the alien did not actively participate in such battery or cruelty; or
5) in the case of an alien applying for status under section 101(a)(15)(U) of the
INA, the perpetrator of the substantial physical or mental abuse and the
criminal activity. 4
Section 384 of IIRIRA also prohibits employees from permitting the use by or disclosure to
anyone (other than a sworn officer or employee of the Department of Homeland Security (DHS),
or bureau or agency thereof, for legitimate DHS, bureau, or agency purposes) of any information
that relates to an alien who has applied for U nonirnmigrant status. 5 Anyone who willfully uses,
publishes, or permits such information to be disclosed in violation ofIIRIRA § 384 will face
disciplinary action and be subject to a civil money penalty of up to $5,000 for each such
violation. 6
When the VSC creates or encounters an A file of an applicant for interim relief based upon
eligibility for U nonimmigrant status, the contents of the A file should be placed behind a
colored cover sheet that sets out the disclosure parameters and penalties so that the materials are
handled with appropriate care.
If you have questions regarding this memorandum or other U nonirnrnigrant status related
issues, please contact Laura Dawkins, Office of Program and Regulation Development, by
electronic mail.

3

Codified at 8 U.S.C. § 1367.
As amended by VTVPA § 1513(d). For limited exceptions to this prohibition see IIRIRA § 384(b).
5
See IIRIRA § 384( a)(2) as amended by VTVPA § 1513 (d).
6 Id.
4

App. 1061