Due Process and the Courts

While updating our immigration system has been a slow process, over the last decade, there have been efforts to pass comprehensive immigration reform legislation and the DREAM Act. Other reform efforts include executive actions such as Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Learn more about the ways America can upgrade its immigration system.

Recent Features

All Due Process and the Courts Content

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.

The American Immigration Council, with co-counsel Dorsey & Whitney LLP, filed a lawsuit against the Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) to compel the release of records relating to noncitizens’ access to counsel.

August 8, 2011
In this letter, the Council and AILA urged ICE to address reports of restrictions on access to counsel in a range of interview settings. These restrictions, documented in a nation-wide survey of immigration attorneys, included complete bars to attorney presence during ICE interviews and limits on participation when attorneys are permitted to be present. Attorneys also reported that ICE officers often were antagonistic toward attorneys.
June 14, 2011
The Council and AILA provided recommendations for changes to the USCIS Adjudicator's Field Manual (AFM) to better safeguard the attorney's role in USCIS interviews. These recommendations were in response to a request from USCIS to present specific recommendations for changes to USCIS guidance on access to counsel.
May 10, 2011
In this May 11, 2011 letter, the Council and AILA urged CBP to address restrictions on access to counsel. These restrictions - documented in a nation-wide survey of immigration attorneys - included limitations on attorneys’ access to their clients in secondary and deferred inspection. In instances where attorneys were able to accompany their clients, CBP officers limited the scope of representation. Attorneys also reported that CBP officers prevented attorneys from providing relevant documentation and sometimes adopted an adversarial approach.
The American Immigration Council, with co-counsel Dorsey & Whitney LLP, filed a lawsuit against the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) to compel the release of records relating to noncitizens’ access to counsel.
The American Immigration Council, with co-counsel Dorsey & Whitney LLP, filed a lawsuit against the Department of Homeland Security and U.S. Citizenship and Immigration Services to compel the release of records relating to noncitizens’ access to counsel.
April 16, 2008
The Council filed an amicus brief arguing that the district court had jurisdiction over the denial of an asylee relative petition in a case brought under the Administrative Procedure Act. Case settled without a decision from the court.

The Council filed a lawsuit against the Department of Homeland Security (DHS) to compel the release of records relating to noncitizens’ access to counsel before United States Citizenship and...

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 30, 2020

A congressional oversight committee held a hearing this week on the need for immigration court reform and the systemic due process challenges within the immigration court system. The House...

January 21, 2020

The Trump administration received an unfortunate victory in the case against their family separation policy. On January 13, 2020, Federal Judge Dana Sabraw sided with the government in a lawsuit...

January 17, 2020

Asylum seekers subject to the Migrant Protection Protocols—or the “Remain in Mexico” program—in Laredo and Brownsville, Texas attend their court hearings in tents known as “port courts.” The...

December 5, 2019

Attorney General Sessions’ orders to prioritize prosecuting people for immigration-related offenses in 2017 and 2018 put a significant strain on law enforcement across the border, diverting...

December 3, 2019

Every year, thousands of people are forced to face the complex deportation system without an attorney representing them. Now, the immigration courts are seeking to limit the assistance that these...

November 18, 2019

Nearly 60,000 people seeking asylum in the United States have been returned to Mexico to wait for their U.S. court hearings under the Migrant Protection Protocols (MPP), also known as the Remain...

November 15, 2019

A federal court ruled this week that sweeping policies permitting U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) to search personal cell phones,...

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.
January 12, 2018
The Immigration Justice Campaign (Justice Campaign), a joint initiative between the American Immigration Lawyers Association (AILA) and the American Immigration Council (Council), and the Rocky Mountain Immigrant Advocacy Network (RMIAN), located in Westminster, Colorado, announce their partnership to increase pro bono representation for individuals in immigration detention in Colorado.
August 16, 2017
The parties in Dilley Pro Bono Project v. ICE have reached a settlement that ensures access to mental health evaluations for certain detained mothers and children seeking asylum.
June 28, 2017
A U.S. District Court condemned the federal government for continuing to disregard critical protections for children in detention.
June 19, 2017
The American Immigration Council and the American Immigration Lawyers Association (AILA) are responding to this representation crisis with an Immigration Justice Campaign, a new initiative to prepare more lawyers to be cutting-edge defenders of immigrants facing deportatio
June 2, 2017
Access to legal counsel is a core American value and is the cornerstone of our justice system. Yet, Immigration and Customs Enforcement (ICE) has severely limited access to legal assistance for asylum-seeking women and children held in family detention facilities.
May 25, 2017
AILA and the Council have petitioned the Department of Homeland Security and the Department of State to issue new regulations that will ensure all immigrants have access to legal counsel in secondary and deferred inspection, as well as overseas consular interviews.
Publication Date: 
June 8, 2021
The Council expressed concerns about the Biden administration's plans for a new type of expedited asylum proceedings.
June 3, 2021

The Department of Homeland Security (DHS)  and the Department of Justice (DOJ) announced on May 28 the creation of a new “Dedicated Docket” in immigration court for the claims of asylum-seeking...

June 2, 2021

In two unanimous decisions, the Supreme Court has rejected rules that provided protections for immigrants. The rejected rules came from the U.S. Court of Appeals for the Ninth Circuit, a court...

May 27, 2021
The amicus brief in Ayom v. Garland urges the eighth circuit to affirm that mandatory detention has constitutional limits, and reject the endorsement of prolonged mandatory detention for people in removal proceedings.
Publication Date: 
May 21, 2021

The American Immigration Council and over 150 organizations supporting people in proceedings before the Immigration Courts or the Board of Immigration Appeals (BIA) sent a letter to the Executive...

May 20, 2021
A new American Immigration Council report examines the Biden administration’s approach to the U.S. system of immigration enforcement during its first 100 days in office.
Publication Date: 
May 20, 2021
This report analyzes the Biden administration's 100 days progress in reforming immigration enforcement and recommendations for how to best move forward.
May 19, 2021
This Practice Advisory provides a broad overview of the Freedom of Information Act (FOIA), including how to make a FOIA request and how to appeal an inadequate response.
Publication Date: 
May 18, 2021
The Council urged the Biden administration to improve MPP wind down processing and toy move ahead with a second phase to include all individuals subjected to MPP.
May 13, 2021

The Biden administration announced its first round of immigration judge appointments on May 6. Unfortunately, the immigration court appointments do not show the commitment to diversity that ...

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