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EXHIBIT 1

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FOR OFFICIAL USE ONLY

ICE Directive 11005.2:

Stay of Removal Requests and Removal Proceedings Involving
U Nonimmigrant Status (U Visa) Petitioners

Issue Date:
Superseded:

August 2, 2019
11005.1: Guidance: Adjudicating Stay Requests Filed by U
Nonimmigrant Status (U-Visa) Applicants (Sept. 24, 2009), and
Memorandum from Peter S. Vincent, Principal Legal Advisor,
Guidance Regarding U Nonimmigrant Status (U visa) Applicants
in Removal Proceedings or with Final Orders of Deportation or
Removal (Sept. 25, 2009),
Federal Enterprise Architecture Number: 306-112-002b

l.

Purpose/Background.
This Directive sets forth U.S. Immigration and Customs
Enforcement (ICE) policy regarding Stay of Removal requests and the exercise of
prosccutorial discretion to join motions to terminate removal proceedings involving U
nonimmigrant status (U visa) petitioners and their qualifying family members. Aliens
subject to pending removal proceedings or a final order of removal may apply for a U
visa with U.S. Citizenship and Immigration Services (USCIS), 1 and those aliens subject
to a final order of removal who have a pending U visa petition may request a Stay of
Removal from ICE Enforcement and Removal Operations (ERO), as may any other alien
subject to a final order of removal. 2
The U visa enables certain removable aliens who are victims of crime to assist law
enforcement without fear of removal. The U vjsa is intended to strengthen the ability of
local, state, and federal law enforcement agencies., including ICE Homeland Security
Investigations (HSI), to detect, investigate, and prosecute cases of human trafficking,
domestic violence, sexual exploitation, female genital mutilation, and other specified
criminal activity. Local, state, and federal law enforcement are authorized to complete
certifications for victims applying for a U visa; within ICE, HSI Special Agents in Charge
(SA Cs) and the Associate Director (AD) for the Office of Professional Responsibility
(OPR) are delegated this certification authority.

2.

1
2

Policy. It is ICE policy to comply with applicable law governing U visas and to
encourage victims of crime to work with law enforcement. Where a U visa petitioner's
law enforcement certification is signed by HSI or OPR, ICE will generally grant a Stay of
Removal request filed by that alien or join a motion to tenninate removal proceedings,
accordingly. In cases involving pending U visa petitioners and their qualifying family
members in which ICE does not sign the law enforcement certification, ICE ERO Field
Office Directors (FODs) and Office of the Principal Legal Advisor (OPLA) attorneys will

8 C.F.R. § 214.14(c)(l)(i)-(ii).
Immigration and Nationality Act (INA)§§ 237(d), 24l(c)(2).

Stay of Removal Requests and Removal Proceedings Involving U Visa Petitioners
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consider the totality of the circumstances, including any favorable or adverse factors, and
any federal interest(s) implicated when determining whether to exercise discretion to
grant or deny a Stay of Removal or join a motion to tenninate removal proceedings. 3
Assistance provided by a U visa petitioner to law enforcement, prosecutors, judges, or
other officials in the detection, i_nvestigation, prosecution, conviction, or sentencing of
criminal activity will generally be considered a significant favorable factbr, but is not
necessarily dispositive.
JCE will no longer routinely request primafacie determinations nor expedited
adjudications from USCIS. An alien with a pending U visa petition whose Stay of
Removal request is denied may be processed for removal absent any legal impediment to
removal.
Stays of Removal granted to U visa petitioners will generally be granted fox an initial
period of 180 days and may be extended for additional 180~day periods thereafter, in
lCE's discretion. A Stay of Removal will not be granted after USC IS places the U visa
petitioner on the waiting list, as such aliens are granted deferred action by USCIS,
rendering a stay unnecessary. 4 A Stay of Removal will not be extended if USCIS denies
the U visa and the petitioner exhausts all administrative appeals, in which case ERO may
continue to process the alien for removal.
Furthermore, it is ICE policy to respect USCfS's grant of deferred action to a U visa
petitioner. Accordingly, ICE will not remove a U visa petitioner or qualifying family
member whom USCIS has placed on the waiting list and granted deferred action unless a
new basis for removal has arisen since the, date of the waiting list placement or USCIS
terminates deferred action.
3.

Definitions.

The following definitions apply for purposes of this Directive only.

3.1.

Headquarters Responsible Official (HRO). The Executive Associate Directors (EADs)
for ERO and HSI, and the AD for OPR.

3.2.

Stay of Removal. A determination in the unreviewable discretion of the Department of
Homeland Security (OHS) to temporarily defer the execution of a final order of removal
issued to an alien. 5

3.3.

U Nonimmigrant Status or "U visa." An immigration benefit available for alien
victims of qualifying crimes who have suffered substantial physical or mental abuse as a
result of having been a crime victim; have information about the criminal activity; and
were helpful, are being helpful, or are likely to be helpful to law enforcement officials in
investigating and prosecuting those crimes. 6

3

ICE officers and agents will make enforcement determinations on a case-by-case basis iil accordance with federal
law and consistent with OHS and ICE policy.
4
See 8 C.F.R. § 214.14(d)(2).

'INA§§ 237(d), 241(,)(2); 8 C.F.R. §§ 241.6(0), 1241.6(,).
'INA§ IOl(a)(JS)(U); 8 C.F.R. § 214.14.
Stay of Removal Requests and Removal Proceedings Involving U Visa Petitioners
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3.4.

U Non immigrant Status Certification, Form 1-918, Supplement B, or "U visa
certification." USCJS Fonn 1-918, Supplement B, U Nonimmigrant Status Certification,
is completed by a federal, state or local law enforcement agency to certify that the
petitioner, among other things, is or has been a direct or indirect victim of qualifying
criminal activity; possesses information about the qualifying criminal activity; and has
been helpful, is bein:g helpful, or is likely to be helpful in the investigation or pros~cution
of the qualifying criminal activity of which he or she is a victim. Victims are required to
submit Form I-918, Supplement B, as a pa1t of their petition to USC[S. 7

3.5.

Waiting List Determination. A USCIS decision on a U visa petition that is the
functional equivalent of a full adjudication on the merits of the petition, including
complete fingerprint and background checks and adjudication of any accompanying
waivers of inadmissibility. A petitioner is placed on the waiting list when, due solely to
the statutory capj a U-1 nonimmigrant visa is not currently available. When a U visa
petitioner is placed on the waiting list, by regulation, USCIS grants deferred action or
parole to the alien and any qualifying family members and may afford them employment
authorization. 8

4.

Responsibilities.

4.1.

The HROs and the Principal Legal Advisor are responsible for ensuring compliance
with the provisions of this Directive and issuing any necessary guidance.

4.2.

HSI and OPR SACs are responsible, as (J visa ce11ifying officials., for signing vetted U
visa certifications for alien victims of crime who are helpful in HSI or OPR
investigations, on a case-by-case basis and confirming upon request by ERO that HSI or
OPR completed a certification for a particular victim.

4.3.

ERO FODs are responsible for adjudicating Stay of Removal requests from U visa
petitioners.

4.4.

OPLA Attorneys are responsible for considering requests from U visa petitioners to join
motions to terminate removal proceedings and reviewing for legal sufficiency, as
appropriate, HSI or OPR's final approval or disapproval of an alien's request for a U visa
certification.

5.

Procedures/Requirements.

5.1.

Signing U Visa Certifications. HSI and OPR will follow the procedures for vetting and
signing U visa ce1tifications, as appropriate, for alien crime victims who are helpful to
HSI investigations as outlined in HSI HB 18N06,U Nonimmigrant Status (U Visa)
Handbook(Sept. 21, 2018), or as updated and OPR Investigative Guidebook, Section
3.40.8 U Nonimmigrant Status (Oct. 2012).

7
8

8 C.F.R. § 214.14{c)(2).
8 C.F.R. § 214.14(d).

Stay of Removal Requests and Removal Proceedings Involving lJ Visa Petitioners
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5.2.

Stay of Removal Requests.

5.2.1

Initiating Stay of Removal Requests. When ICE assumes civil immigration custody of
an alien, ERO must determine whether the alien is an applicant or beneficiary of an
application or petition for a benefit protected by 8 U.S.C. § 1367, including Pending and
approved U visas, by consulting the Central Index System database (or any successor
information technology system established to assu_methe same functions). 9
If the alien has or claims to have a pending U visa petition, the FOD, or designee, upon
the alien's request, will provide him or her with Fann I-246, Application for Stay of
Removal, and enter the date of this action in EARM. lfthe alien does not file a Stay of
Removal request within five business days, ERO may continue to process the alien for
removal.

5.2.2. Reviewing Stay of Removal Requests. Upon receiving a Stay of Removal request from
a pending U visa petitioner for whom HSI or OPR has completed the U visa certification,
ERO will verify the U visa certification with the issuing HSI or OPR SAC office. If
confinned, ERO will generally grant the U visa petitioner's Stay of Removal request
given the close coordination and information sharing within ICE.
Jn all other cases, upon receiving a Stay of Removal request from a U visa petitioner, the
FOD will consider the totality of the circumstances, any favorable or adverse factors
(including the extent and nature of any criminal history), and any federal interest(s)
implicated. Assistance provided by a U visa petitioner to law enforcement, prosecutors,
judges, or other officials in the detection, investigation, prosecution, conviction, or
sentencing of criminal activity will generally be considered a significant favorable factor,
but is not necessarily dispositive. Convictions for crimes related to a petitioner's
victimization will generally not be considered an adverse factor. ICE will not consider the
merits of the U visa petition. ICE will no longer routinely request primafacie
determinations nor expedited adjudications from USCIS. The fact that a petitioner can
continue to pursue a U visa adjudication from outside the United States is not alone a
reason for ICE to deny a Stay of Removal request.
As with any other Stay of Removal request, a Stay of Removal is not appropriate when
there exist national security concerns, evidence the U visa petitioner is a human rights
violator, has engaged in immigration fraud and/or has significantly abused the visa or
visa waiver programs, or has a criminal history that evidences that the alien poses a risk
to public safety.
5.2.3

Adjudicating Stay of Removal Requests. After careful consideration, if the FOD, in his
or her unreviewable discretion, determines that the totality of the circumstances merit a
Stay of Removal, the FOD will grantthe Stay of Removal for an initial 180-day period,

9

OHS Instruction No. 002-02-001, Implemen/alion qfSection !367 (Nov. 7, 2013); DHS Directive No, 002-02,
Implementation of Section 1367 Information Provisions (Nov. I, 2013).

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and may then renew it for additional 180-day periods thereafter, so long as no new
adverse factors arise.
5.2.4. Memorializing a Discretionary Decision. Upon deciding to grant or deny a U visa
petitioner's Stay of Removal request, the POD will provide the petitioner and the attorney
of record, if applicable, with written notice of the decision; place a copy of the notice in
the U visa petitioner's A-file; and enter the decision into the ENFORCE Alien Removal
Module (EARM).
5.2.5. Detention/Release. As in all cases, ifa U visa petitioner is not subject to
mandatory detention, and particularly where the POD has granted a Stay of Removal,
FODs should consider whether continued detention is appropriate given the facts and
circumstances of the case.
5.2.6. Removal ofU Visa Petitioners. The removal ofan alien whose Stay of Removal
request is deni'cd will continue consistent with current removal policies and procedures.
5.2.7. Effect ofUSCIS U Visa Waiting List Determination, Approval or Denial on the Stay
of Removal. JfUSClS places the U visa petitioner on the waiting list, ICE will not grant
a further Stay of Removal as the petitioner will have been granted deferred action by
USCIS, making the stay unnecessary. Given the grant of deferred action for these U visa
petitioners, FODs should consider whether continued detention is necessary or
appropriate given the facts or circumstances of the case, Upon approval ofa U visa,
orders of exclusion, deportation, or removal issued by DHS are deemed cancelled by
operation of law as of the date of USCIS's approval of Form 1-918.1 Final orders of
removal issued by an immigration judge are subject to reopening for cancellation in light
of the U visa approval. 11 On the other hand, USCIS's denial of the U visa petition will
result in the Stay of Removal being lifted automatically as of the date the denial becomes
administratively final. 12

°

5.3

U Visa Petitioners in Removal Proceedings.

5.3.1

Petitioning While in Proceedings. Aliens in pending removal, exclusion, or deportation
proceedings may petition for a U visa. !fan alien in removal proceedings states that he or
she has filed a U visa petition with USClS, provides proof of such filing, and requests
that OPLAjoin a motion to terminate removal proceedings, OPLA will consider on a
case-by-case basis whether or not to exercise its discretion to join a motion to terminate
proceedings before the immigration judge or the Board of Immigration Appeals while the
Form 1-918 is being adjudicated. 13 Determinations of whether to join a motion to

10

8 C.F.R. § 214.14(c)(S)(i).
Id.
12
8 C.F.R. § 214.14(c)(S)(ii).
" 8 C.F.R. § 2 l 4. l 4(cJ(lJ(i).

ii

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terminat e in such cases will be made consistent with Section 5.2.2 and relevan t OPLA
guidance regarding the exercise of prosecutorial discretion. 14

5.3.2

Effect of USCIS U Visa Waiting List Determination, Approval, or Denial on
Proceedings. If USCIS places the U visa petitio ner on the waiting list while he or she is
still in pending removal proceedings, OPLA may move, or join a motion, to dismiss the
removal proceedings without prejudice.

If, after a final order of exclusion, deportation, or remova l has been issued by an
immigration judge , USCIS places the U visa petitioner on the waiting list or approves the
petition, OPLA may join a motion to reopen and dismiss proceedings, without prejudice. 15
Orders of exclusion, deportation, or removal issued by DHS are cancelled by operation of
law as of the date ofUSCIS's approval of Form 1-918. 16
If USCIS denies the U visa petition and removal proceedings were previously dismissed ,
then OHS may file a new Form 1-862, Notice to Appear, to initiate proceedings against
the individual. 17

6.

Recordkeeping. Records in EARM and PLAnet will be retained permanently until the
Nat ional Archives and Records Adm inistration issue formal guidance.

7.

Authorities/References .

7.1.

Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386 , 114
Stat. 1464 .

7.2.

Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L.
No . 109-16 2, Tit. Vlll, 119 Stat. 3053-3077.

7.3.

William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L.
No. 110-457, 122 Stat. 5044.

7.4.

Immigration and Nationality Act of 1952, as amended (INA), Pub. L. No. 82-414, 66
Stat. 163.

7.5.

8 U.S.C. § 110l(a)(J5)(U);

7.6.

8 U.S.C. § 1367, Penalties for disclosure of info rmatio n.

7.7.

8 C.F.R. § 214.14, Alien vict ims of certain qualifying criminal activity.

INA§ 101, U non immigrantdefin ition.

14

See, e.g., Tracy Short, Principal Legal Adv isor, Guidance lo OPLA Altorneys Regarding the Implementation o(
the President's Executive Orders and the Secreta,y 's Directives on Immigration Enforcement (Aug. 15, 20 17).
15
8 C.F.R. § 214.14(cXS)(i).
16

Id.

17

8 C.F.R. § 2l4. 14(c)(5)(ii).

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7.8.

8 C.F.R. § 1241.6,Administrativestay of removal.

7.9.

8 C.F.R. § 241.6, Administrativestay of removal.

7.10. DHS InstructionNumber 002-02-001,Implementationof Section I 367 (Nov. 7, 2013).
7.11. DHS Directive 002-02,Implementationof Section I 367 InformationProvisions (Nov. I,
2013).

7.12. HSI DelegationOrder 10006.1,Authorityto Issue U NonimmigrantStatus Certifications
within HomelandSecurityInvestigations(Nov. 18, 2011).
7,13. HSI HB 18-06, U NonimmigrantStatus (U Visa)Handbook(Sep. 21, 2018).
7.14. Departmentof HomelandSecurity,U and T VisaLaw EnforcementResource Guidefor
Federal, State, Local, Tribal and TerritorialLaw Enforcement,Prosecutors,Judges and
Other GovernmentAgencies (Jan.4, 2016).
7.15. DelegationOrder 10001.2,Authorityto Issue U NonimmigrantStatus Certifications(Oct.
4, 2012).
7.16. Tracy Short, PrincipalLegalAdvisor,Guidanceto OPLAAttorneys Regarding the
Implementationof the President's ExecutiveOrders and the Secretary's Directives on
ImmigrationEnforcement(Aug. 15, 2017).
7.17. OPR DelegationOrder 10001.2,Authorityto Issue UNonimmigrantStatus Certifications
within the Office of ProfessionalResponsibility(Oct. 11, 2012).
7,18

OPR InvestigativeGuidebook,Section3.40.8 U NonimmigrantStatus (Oct. 2012).

8.

Attachments, None.

9.

No Private Right. This documentprovidesonly internalICE policy guidance,which
may be modified,rescinded,or superseded
at anytime withoutnotice.It is not intended
to, does not, andmaynot be relieduponto createanyrightor benefit,substantiveor
procedural,enforceableat law by anypartyin anyadministrative,
civil, or criminal
matter.Likewise,no limitationsareplacedby this guidanceon the otherwiselawful
enforcementor litigativeprerogativesof ICE.

Acting Director
U.S. Immigrationand CustomsEnforcement

Stay of RemovalRequestsand RemovalProceedingsInvolvingU Visa Petitioners
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