CLINIC reminds its Affiliates that the CARECEN settlement agreement, which aids certain TPS beneficiaries who are eligible to adjust their status, ends on Jan. 19, 2025. It is important for advocates to submit PD requests for any TPS beneficiary who may be aided by this settlement agreement before the deadline.

CLINIC’s Removal Toolkit Prosecutorial Discretion and Joint Motions sample documents

BIA held in a precedential decision that DHS can remedy a defective Notice to Appear (NTA) that lacks the date and time of the initial hearing by requesting that the Immigration Judge amend the NTA by writing in the date and time.

This practice advisory addresses common questions that arise for practitioners representing TPS-eligible individuals who are in removal proceedings or facing potential removal proceedings, hold dual nationality, or wish to seek asylum.

This FAQ provides an overview of the new rule, including how the rule interacts with the Circumvention of Lawful Pathways rule.

DOJ issued final regulations codifying the ability of adjudicators within EOIR to administratively close and terminate removal proceedings when certain standards are met.

The Board of Immigration Appeals (BIA) has issued a precedential decision regarding choice of law for proceedings in which the administrative control court has changed. The BIA reiterated that the controlling circuit law in immigration court proceedings is the law governing the geographic location of the immigration court where venue lies, and that courts cannot change venue by changing the court that has administrative control over the record of proceedings. The BIA also found that only the parties can move to change venue and, thus, the choice of law.

Beginning in February 2022, practitioners have been required to use the Executive Office of Immigration Review (EOIR) Courts and Appeals System (ECAS) for all filings in cases pending with EOIR.

The Seventh Circuit held that a reinstated order of removal was not final for purposes of judicial review until the agency had completed withholding proceedings under the Convention Against Torture (CAT).

The Board of Immigration Appeals (BIA) published a decision that addresses when a state court vacatur of a criminal conviction will be recognized for immigration purposes. In this case, the BIA found insufficient evidence in the state court record to determine that the conviction was vacated because of a procedural or substantive defect in the underlying proceedings. As a result, the BIA denied the noncitizen’s motion to reopen and terminate removal proceedings and found that his convictions, although vacated under state law, still rendered him removable.  

The Eighth Circuit held that a denial of a motion to reopen requires a reasoned decision. The decision – with a complicated procedural history – leaves open the possibility that an individual’s mental health symptoms may materially affect the availability of evidence.  

The BIA held that the DHS cannot remedy a NTA that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261.

This practice pointer addresses the assistance that partially accredited representatives can provide to noncitizens in removal proceedings under the federal immigration regulations.

The Fifth Circuit found that failure to file a timely petition for review did not strip the appellate court of jurisdiction. The 30-day filing deadline in withholding-only proceedings runs from the BIA’s order at the conclusion of those proceedings. The appellate court also made other important findings in reviewing the respondent’s application for withholding of removal and protection under the Convention Against Torture (CAT).

 The Board of Immigration Appeals (BIA) published a decision that addresses the immigration judge’s (IJ) obligations when considering unilateral motions to dismiss filed by Immigration and Customs Enforcement (ICE). The BIA found that the IJ must consider the noncitizen’s response to ICE’s moving to dismiss the proceedings rather than terminating proceedings based simply on ICE’s motion.

The Board of Immigration Appeals (BIA) has further defined the requirements for an asylum applicant basing a claim on membership in a particular social group. It held that family membership is not “one central reason” for the harm if it is secondary to another reason related to a non-protected ground.

CLINIC has created a resource that asylum seekers can share with witnesses to assist them in drafting their declaration in support of the asylum application.

BIA has held in a conclusory decision that, where the Department of Homeland Security elects to place individuals apprehended near the border in full removal proceedings under INA § 240 and then releases them, that release is a conditional parole pursuant to INA § 236(a)(2)(B) rather than humanitarian parole pursuant to INA § 212(d)(5).

The Board of Immigration Appeals (BIA) has issued a precedential decision addressing the circumstances under which asylum applicants can show that the government is “unable or unwilling” to protect them from harm by private actors. The BIA emphasized that this determination is a fact-specific inquiry based on consideration of all evidence. Importantly, the BIA also found that failure to report harm is not fatal to a claim of persecution if reporting private abuse would have been futile or dangerous. 

Respondents in removal proceedings are experiencing significant delays due to reports from the United States Citizenship and Immigration Services (USCIS) regarding the backlog of biometrics appointments pertaining to defensive applications for relief.

The Fourth Circuit has adopted an expansive reading of asylum claims based on religious persecution. The Fourth Circuit found that the Board of Immigration Appeals (BIA) had erred in finding that there was no nexus between a death threat received by the asylum applicant and the protected ground of her religion. Instead, the Fourth Circuit adopted a broad interpretation of the nexus requirement, finding that that the applicant’s Christian Pentecostal religion was “one central reason” for the death threat that she endured by gang members in El Salvador, even though the threat was not motivated by a desire to hinder or impede her religious practice.

The U.S. Court of Appeals for the Ninth Circuit has held that a noncitizen’s misrepresentation about his citizenship to police officers for the purpose of avoiding Department of Homeland Security (DHS) enforcement did not render him inadmissible under INA § 212(a)(6)(C)(ii)(I). The Ninth Circuit found that the Board of Immigration Appeals (Board) had erred in upholding the denial of his adjustment of status application on this basis and instead concluded that this misrepresentation about his citizenship status was not made “for any purpose or benefit under” federal or state law.

The Ninth Circuit recently affirmed a denial of asylum where the applicant could not establish a nexus between her “particular social group” and the harm she suffered. Nevertheless, the appellate court confirmed that family membership is considered a particular social group.

The Board of Immigration Appeals (BIA) has held that it has authority to accept otherwise untimely appeals in situations where it deems equitable tolling applies. This is because 8 CFR § 1003.38(b) is a claim-processing rule and not a jurisdictional one.

The Board of Immigration Appeals, or BIA, has issued a precedential decision regarding choice of law for virtual hearings. Specifically, the BIA found that the controlling circuit law in immigration court proceedings is the law governing the geographic location of the immigration court where venue lies.

 The Board of Immigration Appeals has held that the three- and ten-year unlawful presence bars under INA § 212(a)(9)(B)(i) continue to run while a noncitizen is in the United States. The Board agreed with policy guidance issued by U.S. Citizenship and Immigration Services in June 2022 and determined that a noncitizen inadmissible for a specified time due to unlawful presence and a subsequent departure is not required to reside outside the United States to overcome this ground of inadmissibility.   

The Board of Immigration Appeals has held that the entry of a final removal order does not stop the accrual of time necessary for eligibility for non-lawful permanent resident, or non-LPR, cancellation of removal. The Board also reiterated prior decisions in holding that a respondent claiming a fundamental change in law as the basis for a sua sponte reopening of his or her removal case must also show prima facie eligibility for the relief sought.

Attorney General Merrick Garland has restored the ability of immigration judges to terminate removal proceedings in certain limited circumstances. The Department of Justice expects to issue a notice of proposed rulemaking that would address the authority of immigration judges and the Board of Immigration Appeals to terminate removal proceedings.

The Executive Office for Immigration Review (EOIR) recently updated the processes available for requesting immigration court records. Requests may be filed through a Record of Proceeding (ROP) process or the Freedom of Information Act (FOIA) or Privacy Act (PA). Practitioners should be aware of the updates to each process as well as considerations that may make one process faster or more appropriate than the other.

The Department of Justice, or DOJ, has issued a final rule, which goes into effect on Nov. 14, 2022. This rule allows practitioners to assist pro se respondents in removal proceedings with their applications and other submissions to the immigration courts or Board of Immigration Appeals, or BIA, without requiring practitioners to become representatives of record or to move to withdraw after completing such assistance.

Matter of B-Z-R-, 28 I&N Dec. 563 (A.G. 2022) protects noncitizens by doing away with an unjust rule that prevented adjudicators from considering evidence related to an asylum applicant’s mental illness.

On April 3, 2022, Immigration and Customs Enforcement, or ICE, Principal Legal Advisor Kerry E. Doyle issued a memorandum to all ICE Office of the Principal Legal Advisor, or OPLA, attorneys providing guidance on exercising prosecutorial discretion in removal proceedings (Doyle Memorandum). The Doyle Memorandum outlines procedures for OPLA attorneys to follow in designating cases priorities or non-priorities. For non-priority cases, OPLA attorneys are encouraged to cancel Notices to Appear or dismiss active proceedings whenever possible.

The Department of Homeland Security and Department of Justice jointly issued an interim final rule to revise the processing of certain applications for asylum, withholding of removal under the Immigration and Nationality Act, and protection under the Convention Against Torture. The rule makes numerous changes to the way asylum applications are processed for those in expedited removal proceedings who express a fear of return and pass a credible fear interview.

To tamp down on unconstitutional racial profiling in immigration enforcement, the Castañon Nava settlement requires ICE to implement a nationwide policy regarding vehicle stops and collateral arrests

The Board of Immigration Appeals, or BIA, held that a statutorily noncompliant Notice to Appear (NTA) can nevertheless lead to the entry of an in absentia order of removal as long as the respondent is later properly served with a statutorily compliant notice. The BIA also re-affirmed its earlier holding that an NTA lacking information about the time and place of an immigration court hearing does not deprive the immigration judge of jurisdiction over a respondent’s removal proceedings.

EOIR published the Immigration Court Practice Manual, or ICPM, — a comprehensive guide that sets forth uniform procedures, recommendations, and requirements for practice before the Immigration Courts — in February 2008. Since then, the ICPM has seen many updates, but no update was as comprehensive as the update produced on Nov. 20, 2020, and released on Dec. 31, 2020. This resource briefly summarizes some of the key changes via a chart comparing the current version with the prior version of the ICPM.

In Chavez Gonzalez v. Garland, 16 F.4th 131 (4th Cir. Oct. 20, 2021), the U.S. Court of Appeals for the Fourth Circuit abrogated a 2018 decision issued by then-Attorney General Jeff Sessions that had restricted immigration judges’ authority to terminate removal proceedings. In light of the Chavez Gonzalez decision, immigration judges located within the Fourth Circuit now have authority to terminate removal proceedings of noncitizens when they deem it appropriate, for example, in cases of DACA recipients like Mr. Chavez Gonzalez. Advocates hope that Attorney General Garland will act to overrule the 2018 decision nationwide, as he has done with other harmful Trump-era attorney general decisions.

CLINIC, in partnership with the Law Offices of Jezic & Moyse, LLC, defended a United States citizen from deportation, resulting in an important precedent concerning the circumstances under which citizenship is automatically derived. The University of Maryland Francis King Carey School of Law Immigration Clinic capably represented Mr. Duncan before referring the case to its alumni, Himedes Chicas and Michelle N. Mendez, and Pepper Hamilton LLP (now Troutman Pepper) argued the petition for review.

The Board of Immigration Appeals, or BIA, issued a published decision establishing that the “exceptional circumstances” in absentia reopening provision may encompass situations that led to a respondent’s late arrival to court and, therefore, absence at a removal hearing. This decision provides a non-exhaustive list of factors and corroborative evidence for immigration judges to consider when adjudicating late arrival in absentia motions to reopen on a case-by-case basis.

This practice advisory explains how to seek a stay of removal with the Department of Homeland Security (DHS), immigration court, the Board of Immigration Appeals (BIA), and the U.S. courts of appeals.

On May 27, 2021, Immigration and Customs Enforcement, or ICE, Principal Legal Advisor John D. Trasviña issued a memo to ICE Office of the Principal Legal Advisor, or OPLA, attorneys providing interim guidance on exercising prosecutorial discretion in removal proceedings. The memo encourages OPLA attorneys to focus agency resources on cases that fall within one of three priority categories, and to exercise prosecutorial discretion in non-priority cases.

In Niz-Chavez v. Garland, the U.S. Supreme Court ruled that the “stop-time rule” — used to calculate the 10-year continuous physical presence requirement for non-lawful permanent resident cancellation of removal and the 7-year continuous residence requirement for permanent resident cancellation of removal — is only triggered when the Department of Homeland Security serves a single “Notice to Appear” that contains all of the statutorily required information, including the time and place of the immigration court hearing. As a result of the Court’s April 29, 2021 decision, noncitizens with deficient NTAs who have since completed the required period of time in the United States for cancellation of removal may be eligible to apply for that form of relief, if they meet the other requirements.

On Nov. 30, 2020, James McHenry, director of the Executive Office for Immigration Review, issued a Policy Memorandum 21-05, which fundamentally altered immigration court practice, eliminating master calendar hearings in almost all non-detained cases where the respondent is represented. This practice pointer provides tips and strategies for practitioners to navigate immigration court procedure under PM 21-05. On April 2, 2021, EOIR cancelled PM 21-05 and replaced it with a revised Case Flow Processing Policy Memorandum, PM 21-18, which applies to cases initiated on or after April 2, 2021. This practice pointer has not been updated to incorporate the changes made by PM 21-18.

These recordings provide instructions for checking immigration court case status in four Mayan Languages, including Mam, K’iche’, Q’anjob’al, and Q’eqchi’

On its first day in office, the Biden administration rescinded two U.S. Citizenship and Immigration Services, or USCIS, policies that had expanded the situations where a removable noncitizen’s applying for an immigration benefit would result in them being placed into removal proceedings. The Biden administration reinstated the prior policy on this subject, from 2011. This article summarizes the main components of the 2011 policy that is now in effect, regarding in what situations USCIS will initiate removal proceedings against a noncitizen as a result of their applying for an immigration benefit.

OUTDATED RESOURCE – DOES NOT REFLECT CURRENT USCIS POLICY

This practice pointer provides a summary and analysis of USCIS's now-rescinded June 28, 2018 policy memo, which expanded the situations in which USCIS issued a Notice to Appear in connection with adjudicating a request for immigration benefits. On Jan.

On its first day in office, the Biden administration rescinded two U.S. Citizenship and Immigration Services policies that had expanded the situations where a removable noncitizen’s applying for an immigration benefit would result in them being placed into removal proceedings. The Biden administration reinstated the prior policy on this subject, from 2011. The now-operative 2011 guidance restores the previous policy whereby USCIS takes enforcement actions sparingly and in specific situations.

CLINIC submitted comments on Dec. 23, 2020, opposing the majority of the proposed rules that would limit motions to reopen, reconsider and stay of removal, which would undermine fairness and

CLINIC submitted comments on Dec. 23, 2020, opposing the proposed limitations on continuances in immigration court proceedings and other policy changes that would undermine fairness and due process.

CLINIC has drafted a template comment to assist you to respond to EOIR’s proposed rule, "Motions to Reopen and Reconsider; Effect of Departure; Stay of Removal." The template comment provides you with language you can use to draft your own comments in opposition of this proposed rule.

The Board of Immigration Appeals recently issued a precedent decision setting forth standards for reopening a case based on a claim of ineffective assistance of counsel. Matter of Melgar, 28 I&N Dec. 169 (BIA 2020). The decision builds upon the seminal case, Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and clarifies that a respondent seeking reopening must show a reasonable probability that, but for counsel’s error, he would have prevailed on his claim.

The immigration court recently began issuing scheduling orders requiring practitioners to quickly file for relief or waive their client's ability to do so. CLINIC created a template resource to fight back against these orders.

On Oct. 30, 2020, CLINIC submitted comments in response to a Notice of Proposed Rulemaking titled, "Professional Conduct for Practitioners-Rules and Procedures, and Representation and Appearances," and that would allow practitioners to make limited appearances in immigration court. As detailed in the comment, CLINIC strongly supports EOIR clarifying that practitioners can make limited appearances because such appearances allow more noncitizens to have access to counsel, at least for parts of their cases.

On June 18, 2020, the U.S. Supreme Court issued a decision in Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020) holding that the Trump administration’s effort to end DACA had not complied with the requirements of the Administrative Procedures Act. As a result, the Supreme Court upheld a lower court ruling issuing an injunction against the DACA rescission and remanding the case for further proceedings.

CLINIC has created a resource that asylum seekers can share with witnesses to assist them in drafting their declaration in support of the asylum application. The resource is in Spanish and is not intended to be legal advice.

Since its inception in 2019, CLINIC’s Defending Vulnerable Populations, or DVP, Program has offered high quality skills training. With the current concerns about travel and sharing office space, DVP has adjusted and moved our trial skills classes online.

On April 23, 2020, the U.S. Supreme Court issued Barton v. Barr, 590 U. S. ___ (2020), where it held that legal permanent residents (LPRs) in removal proceedings might be ineligible for cancellation of removal based on the applicability of the stop-time rule.

Mental illness can impede a noncitizen’s ability to obtain due process protections and meaningfully present their case in immigration court, but practitioners have many tools available to them to provide effective representation to noncitizens living with mental illnesses. This practice advisory provides an overview of the legal protections available to mentally ill noncitizens facing removal proceedings under section 240 of the INA, as well as to those facing expedited removal, reinstatement and administrative removal proceedings. The practice advisory also addresses some of the practical challenges in working with noncitizens with mental illness.

In a major victory for noncitizens, the U.S. Supreme Court held in a 7-2 decision that the federal circuit courts have jurisdiction to review mixed questions of law and fact. In Guerrero-Lasprilla v. Barr, the Court addressed whether federal courts of appeals have jurisdiction to determine whether the litigants exercised due diligence in seeking to reopen removal proceedings. The Supreme Court found that determining whether undisputed facts met this legal standard was a mixed question of fact and law, permitting judicial review. CLINIC’s practice pointer discusses the Supreme Court decision and provides analysis of other circumstances where courts of appeals may not have jurisdiction.

The Board of Immigration Appeals issued a decision where it concluded that an asylum seeker’s willingness or reluctance to accept an offer for permanent residence does not negate a firm resettlement finding.

CLINIC submitted comments on March 30, 2020, urging the Justice Department to withdraw its proposed fee increases for immigration court and Board of Immigration Appeals, or BIA, filings. CLINIC opposed procedural issues concerning the rulemaking, including the Justice Department’s refusal to extend the 30-day comment deadline in light of the COVID-19 pandemic. CLINIC also argued that the dramatic increases in fees — appeals to the BIA would rise from $110 to $975 — are unreasonable and will prevent people from receiving fair results in their cases.

An immigration judge may issue an in absentia removal order if the Department of Homeland Security establishes by clear, unequivocal and convincing evidence that the respondent had written notice of the hearing and is removable as charged on the Notice to Appear. There are many reasons why a respondent may fail to appear at a removal hearing, including lack of notice of the hearing, sickness, a breakdown in transportation, limited or no English knowledge, or because the respondent is a child without the help of a responsible adult who can assist them in getting to the hearing.

In Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019), the attorney general held that two or more convictions for driving under the influence during the qualifying time period presumptively bar an applicant for non-lawful permanent resident cancellation of removal from proving good moral character under section § 101(f) of the Immigration and Nationality Act.

The Board of Immigration Appeals, issued calls for amicus briefs in two cases where the Department of Homeland Security (DHS) appealed immigration judges’ decisions to terminate cases, where the Notices to Appear did not specify the admission status of the respondents.

This resource is a template to help immigration services organizations draft a public comment in response to the administration’s proposed Executive Office for Immigration Review, or EOIR, fee schedule that dramatically increases fees associated with immigration court filings.

The notice outlines the administration’s plan to significantly increase fees associated with filings for appeals to BIA, applications for suspension of deportation or cancellation of removal, and motions to reopen or reconsider before the immigration courts or the BIA.

On Jan. 22, 2020, the Board of Immigration Appeals issued a decision in Matter of Angel MAYEN-Vinalay, 27 I&N Dec. 755 (BIA 2020) concerning requests for continuances by applicants for “collateral relief” pending with United States Citizenship and Immigration Services who are also in removal proceedings. In this decision, the BIA held that a noncitizen’s prima facie eligibility for U nonimmigrant status, and whether that relief will materially affect the outcome of proceedings, are not dispositive, particularly where there are relevant secondary factors that weigh against a continuance.

This outline provides tips for preparing an asylum-seeker’s declaration.

CLINIC submitted comments addressing a series of questions posed by the Executive Office for Immigration Review (immigration court) in response to the NWIRP v. Sessions litigation. CLINIC's comments focus on the need for expanding access to counsel and suggest that allowing limited appearances may help noncitizens who would otherwise have no counsel. CLINIC will continue to track this issue and submit further comments once the government issues a proposed rule.

The U.S. government has issued in absentia removal orders to a large number of families primarily from El Salvador, Guatemala and Honduras. These families fled persecution and sought safety in the United States often proving they had a credible fear of returning to their home country.

This practice advisory provides practitioners guidance on Matter of L-A-B-R-, a decision issued on August 16, 2018. In L-A-B-R-, former Attorney General Jeff Session addressed the factors that an IJ must consider when a respondent requests a continuance in order “to await the resolution of a collateral matter.” This practice advisory suggests strategies practitioners may use to fight for continuances for their clients.

On November 15, 2018, USCIS conducted its second stakeholder call addressing the incremental implementation of the June 28, 2018 USCIS Policy Memo on Notice to Appear Issuance (NTA PM).

October 5, 2018

On June 28, 2018, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum that would expand the types of cases where USCIS will issue a Notice to Appear (NTA) in the course of adjudicating an application, petition, or request for an immigration benefit.

On Sept. 18, 2018, Attorney General (AG) Jefferson Sessions, in two cases he referred to himself, held that immigration judges (IJs) may dismiss or terminate removal proceedings only where the regulations expressly allow or if the charges of removability against a respondent have not been sustained. Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018).

In late August, the Board of Immigration Appeals, or BIA, issued a precedential decision, Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), which interprets the scope of the recent Supreme Court decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). Bermudez-Cota limits the application of Pereira’s holding to the stop-time rule in cancellation of removal cases. Bermudez-Cota’s narrow interpretation of Pereira is certain to lead to further federal litigation.

On August 16, 2018, Attorney General Jefferson Sessions issued Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018), a precedent decision about how immigration judges (IJs) should decide certain motions for a continuance “to await the resolution of a collateral matter.” The decision uses the term “collateral matter” to refer to filings with U.S.

The Supreme Court issued a decision in Pereira v. Sessions, No. 17-459, --S. Ct. -- 2018 WL 3058276 (U.S. June 21, 2018) on June 21, 2018, which could make cancellation of removal available to many noncitizens who were previously foreclosed from this form of relief.

Attorney General Sessions requested briefing from amici in the case of Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018).  In response to this request, CLINIC and Matthew Hoppock filed this amicus brief on February 16, 2018.

As more noncitizens are targeted for the initiation of removal proceedings under the Trump administration’s broadened enforcement priorities, immigration court dockets will likely become even more backlogged. Given these strains and the reality of human fallibility, there will continue to be instances in which practitioners observe inappropriate and problematic immigration judge conduct.

U.S. Immigration Courts and Circuit Courts of Appeal for your reference.