Due Process and the Courts

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August 17, 2015
The Council submitted an amicus brief arguing that immigration judges’ duty to develop the record is particularly important in pro se litigants’ cases, and that this duty requires immigration judges to provide noncitizens with information about the types of relief they are seeking and to actively elicit relevant information. For more information about this topic, contact the Council's legal department.
April 16, 2015
The Council and the National Immigration Project of the National Lawyers Guild submitted an amicus brief in support of rehearing addressing immigration judges’ duty, in pro se cases, to fully inform litigants of the consequences of their legal decisions and to ensure that any waivers of appeal are knowing and intelligent. The Ninth Circuit denied the petition for rehearing in a non-precedent decision. For more information on this topic, contact the Council's legal department.
March 1, 2015
By statute, noncitizens who have been ordered removed have the right to file one motion to reopen. 8 U.S.C. § 1229a(c)(7)(A). In most cases, these statutory motions to reopen are subject to strict filing deadlines. See 8 U.S.C. §§ 1229a(c)(7)(C)(i), (b)(5)(C)(i). However, as nine courts of appeals have recognized, the deadlines are subject to equitable tolling, a long-recognized principle through which courts can waive the application of certain non-jurisdictional statutes of limitations where a plaintiff was diligent but nonetheless unable to comply with the filing deadline. Several courts have also recognized that the numerical limitation on motions to reopen is subject to tolling. The Council continues to advocate in the remaining courts of appeals for recognition that that the motion to reopen deadlines are subject to equitable tolling and, with the National Immigration Project of the National Lawyers' Guild (NIPNLG), has filed amicus briefs in the Fourth, Fifth and Eleventh Circuits.
January 29, 2015
The Council submitted comments in response to a request by DHS and the Department of State (DOS) for input on streamlining and improving the U.S. immigrant and nonimmigrant visa systems. In the comments, the Council recommended that DHS amend 8 C.F.R. § 292.5(b) to ensure that individuals in secondary inspection are provided with a regulatory right to counsel during their examinations, and that DOS promulgate regulations in 22 C.F.R. Part 40 to provide for meaningful access to counsel during interviews at consular posts.
October 1, 2014
The synopsis provides a summary of CBP policies related to access to counsel, based on documents obtained through the Council’s FOIA request and litigation. The summary addresses access to counsel in inspections and CBP detention, and policies on advisals of rights and the treatment of children.
This lawsuits seeks recognition of a right to appointed counsel for unrepresented children in immigration proceedings nationwide.
March 21, 2014
Noncitizens facing removal must have a meaningful opportunity to present their cases to an immigration judge. On occasion, noncitizens are deprived of this opportunity due to their lawyers’ incompetence or mistake. Although the government has recognized the need for a remedy for ineffective assistance of counsel, see Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), the framework currently used to evaluate whether ineffective assistance has occurred is severely flawed. The Council has long worked to protect the right to effective assistance of counsel for noncitizens in removal proceedings.
January 21, 2014
The American Immigration Council and National Immigration Project of the National Lawyers Guild (NIPNLG) are seeking to preserve federal court review of damages actions brought by noncitizens for abuse of authority by immigration agents.
January 3, 2014
Long used in criminal trials, motions to suppress can lead to the exclusion of evidence obtained by the government in violation of the Fourth Amendment, Fifth Amendment, or related provisions of federal law. While the immediate purpose of filing a motion to suppress is to prevent the government from meeting its burden of proof, challenges to unlawfully obtained evidence can also deter future violations by law enforcement officers and thereby protect the rights of other noncitizens. The Supreme Court held in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), that motions to suppress evidence under the Fourth Amendment in immigration proceedings should be granted only for “egregious” violations or if violations became “widespread.” Despite this stringent standard, noncitizens have prevailed in many cases on motions to suppress.
November 29, 2013
At issue in the case is whether the Constitution and the immigration laws allow an immigration judge to enter a removal order without considering whether removal would be a disproportionate penalty under the circumstances. The amicus brief by the Council and the Post-Deportation Human Rights Project tells the stories of five individuals who either already have or soon will face the extreme penalty of deportation and a permanent reentry bar for minor or nonviolent crimes committed years earlier. The men and women featured in the brief share many attributes: all were lawful permanent residents; all established significant ties to this country; all left (or will leave) behind U.S. citizen family members; all committed nonviolent crimes; all have demonstrated rehabilitation; and none was afforded the opportunity to explain to the immigration judge why forcible removal from the country was unjustified under the circumstances. The brief throws into stark relief the real life human consequences of stripping judges of the ability to consider the totality of the circumstances before entering an order of removal.
June 20, 2013
This Practice Advisory discusses the primary issues involved in a suit brought under the Administrative Procedure Act (APA) to challenge an unlawful agency action. The Advisory provides examples of how these issues have been decided in immigration cases and arguments that can be made to meet the various procedural requirements for an APA action.
April 29, 2013
This Practice Advisory examines how the courts and the agencies apply the fugitive disentitlement doctrine which arises in the immigration context when courts of appeals use the doctrine to dismiss petitions for review and when government agencies invoke the doctrine to deny FOIA requests. This Practice Advisory examines how the courts and the agencies apply the doctrine in these contexts.
December 21, 2012
This Practice Advisory contains practical and legal suggestions for individuals seeking to return to the United States after they have prevailed on a petition for review or an administrative motion to reopen or reconsider to the immigration court or Board of Immigration Appeals.
June 12, 2012
This Practice Advisory discusses Dent v. Holder, requiring the government to turn over copies of documents in an A-file where removability is contested, and offers strategies for making document requests pursuant to the INA and due process.
April 29, 2011

This Practice Advisory discusses the procedures and requirements for filing a petition for rehearing, rehearing en banc or hearing en banc in the court of appeals.

August 1, 2009
This Practice Advisory presents a short introduction to the Criminal Justice Act (CJA), which authorizes U.S. district courts to appoint counsel to represent financially eligible individuals in habeas corpus actions brought pursuant to 28 U.S.C. § 2241.
April 13, 2009
This Practice Advisory explains the federal rules authorizing electronic filing in federal court; describes how to file documents in federal court using the Electronic Case Files (CM/ECF) System; and outlines how to access electronic documents through Public Access to Court Electronic Records (PACER). The Advisory discusses restrictions on electronic access to court documents in immigration cases.
August 5, 2008
The Immigration and Nationality Act authorizes the courts of appeals to review “final” removal orders. This Practice Advisory addresses whether a removal decision issued by an Immigration Judge or the BIA is a “final” removal order for purposes of federal court review.
June 1, 2008

This Practice Advisory offers a short introduction to habeas corpus, addressing when and how a petitioner may file a petition for writ of habeas corpus in the immigration context.

April 5, 2006
This Practice Advisory discusses the changes that the REAL ID Act made to INA § 242(a)(2)(B) and outlines an analysis for whether §242(a)(2)(B) applies to a particular case. It also discusses federal court jurisdiction over discretionary decisions after the REAL ID Act in the removal and non-removal contexts. The government has asserted this jurisdictional bar in employment-based, family-based, and humaritarian-based immigration cases.
October 15, 2019

The Supreme Court began a new session this October, and in the coming months, the justices will hear several high-profile immigration cases. These cases involve the attempted termination of the...

October 11, 2019

People in immigration detention who are represented by an attorney are more likely to receive a positive outcome in immigration court than those that face judges alone. Unfortunately, people who...

October 2, 2019

A federal judge on Friday blocked the Trump administration’s attempts to significantly undo the Flores Settlement Agreement, which mandates certain protections for children held in immigration...

September 30, 2019

A federal judge blocked the expansion of a fast-track deportation program, known as “expedited removal,” minutes before the government said it would begin implementing its expansion on September...

September 24, 2019

When Donald Trump took office in January 2017, the immigration courts faced a record backlog of over 542,000 cases. This month, the immigration court backlog hit a new historic high with over 1,...

September 9, 2019

The first thing many people forcibly returned to Mexico tell you is that they’re afraid. Afraid of the cartels, afraid of Mexican immigration officials, and afraid of the months of uncertainty....

August 29, 2019

Immigration judges from across the country will soon be reassigned from their normal caseload to  preside over thousands of immigration cases along the U.S.-Mexico border, reportedly in an effort...

August 27, 2019

The Trump administration implemented more drastic changes to the U.S. immigration court system on Monday. A new rule gives the director of the Executive Office for Immigration Review (EOIR)—a...

August 19, 2019

A federal appeals court in California ruled on Thursday that immigrant children must receive edible food, clean water, soap, and toothpaste while being detained by U.S. immigration authorities....

August 12, 2019

Immigration judges around the country are denouncing the Trump administration’s latest move to “disband and destroy” their union. The judges’ union has been openly critical of the administration’s...

December 3, 2018
The American Immigration Council and other immigrant rights organizations filed a legal brief on Friday that explains why President Donald Trump’s designation of Matthew G. Whitaker as acting attorney general is unlawful. As a result, the brief asserts, Whitaker lacks the authority to decide a critical immigration case.
November 21, 2018
The American Immigration Council announced today that it will focus on the critical need for access to an attorney when navigating the immigration system during its #GivingTuesday and year-end fundraising campaign starting November 27.
September 21, 2018
Yesterday, plaintiffs in an ongoing lawsuit challenging the U.S. government’s targeted efforts to obstruct asylum seekers filed a motion for preliminary injunction demanding timely bond hearings that comport with due process.
August 16, 2018
As government officials and policymakers weigh the potential expansion of family detention, this report reveals how detention impacts asylum-seeking families and their claims for protection.
May 17, 2018
Attorney General Jeff Sessions unilaterally removed immigration judges’ general authority to administratively close cases. Ending the use of administrative closure will have far-reaching consequences for those in removal proceedings, including adding tens of thousands of cases to an already over-burdened immigration court system.
April 25, 2018
Citing pushback from congressional leaders, Attorney General Jeff Sessions announced that the Executive Office for Immigration Review, part of the Department of Justice, will continue the Legal Orientation Program.
April 23, 2018
In response to a Freedom of Information Act request, the American Immigration Lawyers Association and the American Immigration Council received a partially redacted report written by Booz Allen Hamilton and commissioned by the Executive Office for Immigration Review. The comprehensive report investigated a range of immigration court issues including judicial performance reviews, Legal Orientation Programs, and procedural mechanisms, such as administrative closure, that can be used to streamline caseloads.
April 11, 2018
The Executive Office for Immigration Review (EOIR), part of the Department of Justice (DOJ), announced its intention to cancel the Legal Orientation Program (LOP) despite its immensely positive impact on judicial efficiency and fundamental fairness, and Congress’ express instruction to continue such programming, along with the provision of funding in the fiscal year 2018 appropriations bill, recently signed by the president.
April 3, 2018
The Executive Office of Immigration Review (EOIR), part of the Department of Justice (DOJ), has instituted strict quotas as part of immigration judges' individual performance evaluations, a shift that strips away the independence held by judges who are making high stakes decisions about whether a person will be deported.
March 29, 2018
A federal district court judge in Washington State ruled today that the federal government’s failure to notify asylum seekers that they must apply for asylum within one year of arriving in the United States violated their right to due process, and ordered the government to provide such notice.
March 6, 2020

153 legal representation, refugee assistance, faith-based, human rights, and community groups—including the American Immigration Council—sent a letter to the Department of Homeland Security...

March 3, 2020

The Trump administration suffered another blow on Sunday, when a federal judge in Washington D.C. ruled that Ken Cuccinelli was unlawfully appointed to the role of acting director of U.S....

March 2, 2020

The Supreme Court affirmed the dismissal of a lawsuit seeking damages from a U.S. Border Patrol agent who shot and killed a teenager across the U.S.-Mexico border. With this latest decision in the...

February 28, 2020
The Ninth Circuit Court of Appeals blocked the Trump administration’s Migrant Protection Protocols, also known as the “Remain in Mexico” program. Nearly 60,000 people seeking asylum in the United States have been returned to Mexico to wait for their U.S. court hearings under MPP.
February 21, 2020

The U.S. Department of Homeland Security (DHS) has been targeting U.S. citizens’ foreign spouses when they apply for legal immigration status. Earlier this month, a federal judge in Maryland put a...

February 20, 2020

A federal court found on Wednesday that U.S. Border Patrol may not detain migrants held in its facilities in Arizona’s Tucson Sector longer than 48 hours without providing for their “basic human...

February 13, 2020

A federal judge in Arizona reversed convictions of four volunteers of the humanitarian aid group No More Deaths last week. No More Deaths is an Arizona-based group that works to end death and...

February 12, 2020

A federal district court stopped U.S. Citizenship and Immigration Services (USCIS) from drastically changing how the agency determines when a foreign student or exchange visitor is “unlawfully...

February 4, 2020

In U.S. Customs and Border Protection (CBP) custody, asylum seekers are detained in horribly cold and overcrowded facilities, unable to sleep, without access to food, water, or adequate medical...

January 31, 2020

The American Immigration Council and the American Immigration Lawyers Association submitted an amicus brief in Las Americas Immigrant Advocacy Center v. Wolf, a case filed by the American...

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