Due Process and the Courts

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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.
October 4, 2013
The Council, along with the National Immigration Project of the National Lawyers Guild (NIPNLG), is seeking to preserve federal court review of damages actions brought by noncitizens for abuse of authority by immigration agents. In actions brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the government routinely moves to dismiss these cases on a variety of jurisdictional grounds, including by arguing that INA § 242(g) bars the court’s review of damages claims in any case involving removal procedures, and that a remedy under Bivens is not available in immigration-related actions. In essence, the government is attempting to deprive those who have been harmed by immigration agents of any remedy in federal court.
The American Immigration Council and co-counsel Public Citizen filed a lawsuit on behalf of the American Immigration Lawyers Association (AILA) seeking information about complaints alleging immigration judge misconduct.
January 4, 2013
The American Immigration Council, working with the National Immigration Project of the National Lawyers Guild, has repeatedly challenged the “departure bar,” a regulation that precludes noncitizens from filing a motion to reopen or reconsider a removal case after they have left the United States. The departure bar not only precludes reopening or reconsideration based on new evidence or arguments that may affect the outcome of a case, but also deprives immigration judges and the Board of Immigration Appeals of authority to adjudicate motions to remedy deportations wrongfully executed, whether intentionally or inadvertently, by DHS. We argue that the regulation conflicts with the statutory right to pursue reopening and, as interpreted by the government, is an impermissible restriction of congressionally granted authority to adjudicate immigration cases.
February 14, 2012
The Council and AILA submitted comments on the USCIS Interim Memo “The Role of Private Attorneys and Other Representatives; Revisions to Adjudicator’s Field Manual (AFM) Chapters 12 and 15; AFM Update AD11-42.” The comments recommended, among other things, that USCIS take additional steps to clarify the role of attorneys and the treatment of attorneys’ written submissions; to address continued limitations on attorney seating; to expand the requirements related to waivers of representation; and to improve the complaint process.
June 7, 2005
On May 11, 2005, the REAL ID Act was signed into law. This Act contains numerous provisions related to federal court review of immigration cases. This Practice Advisory discusses the provisions of the Act that pertain to judicial review of immigration decisions under the INA.
April 27, 2005
This Practice Advisory discusses the types of Affirmance Without Option (AWO) challenges that have failed and those that remain available. The Advisory also includes a chart identifying the primary cases in each circuit and how they have decided various AWO issues.
April 20, 2005
This Practice Advisory addresses situations in which a court might excuse a late-filed petition for review and discusses other administrative and federal court options for remedying the failure to timely file a petition for review. The Advisory also provides an overview of 28 U.S.C. § 1631, which authorizes courts to transfer a case to cure a lack of jurisdiction when an action is filed in the wrong federal court.
April 6, 2005
On April 1, 2005, EOIR’s Background and Security Check regulations went into effect. The interim rule bars IJs and the BIA from granting most forms of relief until DHS has informed them that security checks are completed. This Practice Advisory provides basic information about the requirements and procedures under the interim rule and highlights the major changes to BIA procedures.
November 5, 2019

Understanding how the immigration agencies operate has never been more important. Equally important is being able to rely on the information that those agencies release to the public. For this...

October 23, 2019

Rape, violence, kidnapping, and lack of basic health care is, unfortunately, a reality for hundreds of asylum seekers subjected to the Migrant Protection Protocols (MPP) or “Remain in Mexico”...

October 17, 2019

A federal court in San Francisco certified two nationwide classes of immigrants and attorneys challenging extreme agency delays in producing immigration case files. Plaintiffs allege that U.S....

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...

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.
February 21, 2018
The American Immigration Council, joined by several other immigration groups, submitted an amicus brief that argues that due process requires an impartial adjudicator and that Sessions’ anti-immigrant statements and actions prevent him from acting as one. The brief lays out Sessions’ decades-long public record of anti-immigrant statements, including specific statements evidencing prejudgment of issues in the case, and urges Sessions to either vacate the referral order or recuse himself from the case.
January 18, 2018
The lawsuit challenges the practice of three of the four sitting immigration judges in the Charlotte Immigration Court who refuse to conduct bond hearings—even though they are required to do so—and are consequently prolonging the detention of bond-eligible individuals for several weeks.
June 23, 2020
A federal appeals court has ruled that a lawsuit against the Trump administration’s policy that sought to massively expand fast-track deportations without a fair legal process can continue. The court held that the lawsuit was properly brought, but rejected the claim that the administration had failed to follow the procedures provided under the Administrative Procedure Act.
June 9, 2020

With 1.2 million cases pending in immigration court, transparency into how the courts are run is more important than ever. Unlike traditional courts where records are public, the only way to get...

June 5, 2020
The American Immigration Council has named experienced attorney and litigator Kate Melloy Goettel to be its legal director of litigation.
June 4, 2020

The U.S. Supreme Court found on Monday that federal courts have the authority to review certain claims from people who are seeking protection from torture. The case, Nasrallah v. Barr, is about...

May 28, 2020

The Board of Immigration Appeals’ (BIA) hiring process for immigration appellate judges was recently revealed. Now, the integrity of the immigration court system has never been more in question....

May 28, 2020
This Practice Advisory addresses who is, or who may be, the proper respondent-defendant and recipient for service of process in immigration-related litigation in district court.
May 27, 2020
The American Immigration Council's latest report examines major changes to the U.S. immigration system in the wake of the COVID-19 pandemic and the unique challenges the pandemic has created for noncitizens and government agencies.
May 12, 2020

The U.S. government rejects an immigrant’s entire application for a visa or immigration benefit over a single blank field on a form. Applications can be rejected if a box is left unchecked or has...

May 4, 2020

A free phone call can mean the difference between a fair day in court and being deported to harm—or worse—for individuals held in immigration detention centers. Immigrants may not be able to meet...

May 4, 2020
The American Immigration Lawyers Association and the American Immigration Council released documents obtained via Freedom of Information Act litigation revealing the Department of Justice Executive Office for Immigration Review’s updated hiring plan for immigration judges and appellate immigration judges.

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