Due Process and the Courts

The enforcement of immigration laws is a complex and hotly-debated topic. Learn more about the costs of immigration enforcement and the ways in which the U.S. can enforce our immigration laws humanely and in a manner that ensures due process.

Recent Features

  • FOIA

Investigating the Immigration Court System

We're demanding information to uncover the hiring process for Assistant Chief Immigration Judge and their influence over the immigration courts.

Two Systems of Justice: How the Immigration System Falls Short of American Ideals of Justice

This special report lays out the the incongruency between America's criminal justice system and its immigration justice system, and provides recommendations for how these problems could be fixed.

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All Due Process and the Courts Content

  • Special Report

Behind Closed Doors: An Overview of DHS Restrictions on Access to Counsel

Publication Date: 
May 1, 2012
The report describes restrictions on access to legal counsel before DHS, provides a legal landscape, and offers recommendations designed to combat DHS’s harmful practices. It also addresses changes...
  • Special Report

Proportionality in Immigration Law: Does the Punishment Fit the Crime in Immigration Court?

Publication Date: 
April 1, 2012
Proportionality is the notion that the severity of a sanction should not be excessive in relation to the gravity of an offense. The principle is ancient and nearly uncontestable, and its operation...
  • Special Report

The Lasting Impact of Mendez v. Westminster in the Struggle for Desegregation

Publication Date: 
March 25, 2010
Years before the U.S. Supreme Court ended racial segregation in U.S. schools with Brown v. Board of Education, a federal circuit court in California ruled that segregation of school children...
  • Special Report

The Rush to Limit Judicial Review

Publication Date: 
September 1, 2006
Access to an independent judiciary with the power to hold the government accountable in its dealings with individuals is a founding principle of the United States. In contrast, imagine a system...
  • Fact Sheet

Crossing Borders Alone: The Treatment of Unaccompanied Children in the United States

Publication Date: 
December 1, 2003
Children who travel unaccompanied to the United States experience not only the trauma of family separation and the frequently predatory behavior of the traffickers who bring them, but also harsh...
  • FOIA

FOIA Request Seeks Information About the Secretive Expansion of Immigration Courts

The American Immigration Council filed a Freedom of Information Act (FOIA) request with the Executive Office for Immigration Review (EOIR) seeking information relating to the expansion and...

  • Litigation

Challenging the Expansion of Expedited Removal

The Trump administration wants to increase its power to deport immigrants without a fair day in court through expedited removal. We’re suing.
  • FOIA Litigation

FOIA Lawsuit Demands Release of Information on the Institutional Hearing Program

This FOIA lawsuit sought information from the EOIR on the Institutional Hearing Program (IHP), which it runs jointly with ICE and the Bureau of Prisons (BOP).
  • FOIA

FOIA Request on EOIR Institutional Hearing Program

The Council, along with AILA and the Immigrant Defense Project (IDP) filed a Freedom of Information Act (FOIA) request with the Executive Office for Immigration Review (EOIR) seeking information relating to the Institutional Hearing Program (IHP).
  • Litigation

Standards for Avoiding Deportation Cannot Be Shrouded in Secrecy

We filed a FOIA request seeking statistical information, as well as policies and guidance, regarding Board of Immigration Appeals standards for issuing stays of removal. Because the government failed to respond, we're filing a lawsuit.
  • FOIA

Immigration Judge Performance Quotas FOIA Request

The American Immigration Council and the American Immigration Lawyers Association filed a Freedom of Information Act (FOIA) request with the Executive Office for Immigration Review (EOIR)—the...

  • Amicus Briefs

Matter of Castro-Tum

Publication Date: 
February 19, 2018
In the case, Attorney General Jeff Sessions referred to himself questions related to administrative closure. This move by Sessions could signal an attempt to end administrative closure altogether—which could force over 350,000 immigrants back into immigration court, exacerbating the challenges of an already overburdened immigration court system.
  • Litigation

Challenging Immigration Judges' Refusal to Conduct Bond Hearings

This lawsuit challenges the actions of immigration judges in Charlotte, North Carolina who have refused to conduct bond hearings for people who properly file bond motions with the Charlotte Immigration Court.
  • Litigation

Challenging Obstacles to Meeting The One Year Filing Deadline for Filing An Asylum Application

This lawsuit challenged obstacles faced by asylum-seekers in satisfying the statutory requirement that they apply for asylum within one year of entering the United States.
  • Amicus Briefs

In re C-C-C- - Board of Immigration Appeals

Publication Date: 
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.
  • Practice Advisories

How to File a Petition for Review

Publication Date: 
November 9, 2015
Noncitizens may file a petition for review in the court of appeals to seek judicial review of a final removal order. This Practice Advisory addresses the procedures and general requirements for filing and litigating a petition for review.
  • Practice Advisories

Employment Authorization and Asylum: Strategies to Avoid Stopping the Asylum Clock

Publication Date: 
February 5, 2014
The American Immigration Council’s Practice Advisory, Employment Authorization and Asylum: Strategies to Avoid Stopping the Asylum Clock, has been updated to reflect extensive changes to the manner in which the United States Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) determine an asylum applicant’s eligibility for an Employment Authorization Document (EAD).
  • Practice Advisories

Seeking a Judicial Stay of Removal in the Court of Appeals

Publication Date: 
January 21, 2014
This Practice Advisory provides background information about requesting stays of removal from the court of appeals, discusses the legal standard for obtaining a stay, and addresses the implications of the government’s policy with respect to return of individuals who are successful on their appeal.
  • Practice Advisories

Departure Bar to Motions to Reopen and Reconsider: Legal Overview and Related Issues

Publication Date: 
November 20, 2013

This Practice Advisory discusses the "departure bar" to motions to reopen and arguments adopted by circuit courts that have rejected or upheld the bar.

  • Practice Advisories

How to Get Judicial Relief Under 8 USC 1447(b) for a Stalled Naturalization Application

Publication Date: 
October 23, 2013
Section 336(b) of the INA, 8 U.S.C. § 1447(b), gives a district court jurisdiction to intervene in a case where USCIS has failed to make a decision on the naturalization application within 120 days of the applicant’s “examination” by USCIS. This Practice Advisory discusses the nuts and bolts of bringing a suit under INA § 336(b). It also discusses when attorneys fees under the Equal Access to Justice Act are available.
  • Practice Advisories

The Fugitive Disentitlement Doctrine: FOIA and Petitions for Review

Publication Date: 
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.
  • Practice Advisories

Return to the United States After Prevailing on a Petition for Review or Motion to Reopen

Publication Date: 
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.
  • Practice Advisories

Dent v. Holder and Strategies for Obtaining Documents During Removal Proceedings

Publication Date: 
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.
  • Practice Advisories

How To File A Petition For Rehearing, Rehearing En Banc And Hearing En Banc In An Immigration Case

Publication Date: 
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.

  • Practice Advisories

The Criminal Justice Act: Appointment of Counsel in Habeas Corpus Proceedings

Publication Date: 
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.
  • Blog

What Does Legal Representation Look Like in Immigration Courts Across the Country?

August 23, 2022

Written by Emily Creighton of the American Immigration Council and Jennifer Whitlock of the American Immigration Lawyers Association.  It might seem like a straightforward statistic: 44% of...

  • Blog

New Report Reveals Widespread Failures by DHS To Prosecute Immigration Court Cases

August 3, 2022

Thousands of immigration court cases have been dismissed this year for an astonishing reason: U.S. Customs and Border Protection (CBP) has failed to file the most basic paperwork with the courts....

  • Blog

Supreme Court Permits Biden to Terminate ‘Remain in Mexico’ Program

June 30, 2022

Almost a year after the Supreme Court allowed a federal judge in Texas to order the Biden administration to restart the so-called “Migrant Protection Protocols” (MPP), the Supreme Court ruled in...

  • Blog

The Supreme Court Overturning Roe v. Wade Could Have Harmful Ripple Effects for Immigrants

May 13, 2022

Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health, which is poised to overturn Roe v. Wade, could have damaging effects to immigrant rights secured through the courts. The...

  • Blog

I Visited Biden’s MPP Tent Courts. The Changes Since Trump Don’t Fix the Program’s Flaws.

April 21, 2022

More than two years after visiting the Trump administration’s “Migrant Protection Protocols” (MPP) tent courts in Laredo, Texas, I returned to see how they had changed under the Biden...

  • Blog

ICE’s New Guidance to Government Attorneys Aims to Reduce Immigration Court Backlog

April 7, 2022

U.S. Immigration and Customs Enforcement (ICE) issued a long-awaited memo on Sunday to guide ICE attorneys on exercising their prosecutorial discretion in immigration court. Authored by ICE’s...

  • Blog

How Would Biden’s Supreme Court Nominee Handle Immigration Cases?

March 9, 2022

President Biden has nominated Judge Ketanji Brown Jackson to replace retiring Justice Stephen Breyer on the United States Supreme Court. With nearly a decade as a federal judge, Judge Jackson’s...

  • Blog

The Board of Immigration Appeals Will Now Provide the Public with Access to Its Unpublished Decisions

February 15, 2022

Immigrants and their representatives will gain access to decisions of the Board of Immigration Appeals (BIA) that were not publicly available. As a result of a settlement of a lawsuit filed by the...

  • Blog

Immigration Court Comes Into the 21st Century with Electronic Filing for Attorneys

February 3, 2022

Immigration courts will soon take a big step into the digital age. On February 11, 2022, immigration attorneys, accredited representatives, and Department of Homeland Security (DHS) lawyers, will...

  • Blog

New Report Amplifies Concerns About ‘Dedicated Docket’ for Asylum Seekers

January 20, 2022

When the Biden administration announced a new “dedicated docket” in immigration court for families seeking asylum at the border, many advocates raised concerns that the docket would forgo due...

  • Press Release

DOJ Cuts Immigrants’ Access to Counsel in Latest Attack on Due Process

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.
  • Press Release

ICE Settles Case Challenging Interference with Legal Representation at Dilley

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.
  • Press Release

Court Finds Government Violating Obligations (Again) to Children in Family Detention

June 28, 2017
A U.S. District Court condemned the federal government for continuing to disregard critical protections for children in detention.
  • Press Release

Federal Court Grants Nationwide Class Status in Suit to Protect Asylum Seekers

January 12, 2017
A federal court in Seattle has granted nationwide class action status to a case seeking to protect the rights of thousands of asylum seekers pursuing protection from persecution in their home countries.
  • Press Release

Groups Settle Lawsuit Challenging Failure of U.S. Customs and Border Protection to Timely Respond to FOIA Requests

October 5, 2016
In accordance with a settlement reached by the parties, a federal district court dismissed a class action lawsuit which challenged U.S. Customs and Border Protection’s (CBP) nationwide practice of failing to timely respond to requests for case information under the Freedom of Information Act (FOIA).
  • Press Release

Developments with Respect to the One-Year Deadline for Filing Asylum Applications

September 20, 2016
Northwest Immigrant Rights Project (NWIRP), Dobrin & Han, PC, American Immigration Council, and the National Immigration Project of the National Lawyers Guild commend the Executive Office for Immigration Review (EOIR) for reversing course and now allowing asylum applicants to file their applications by mail or in person at an immigration court window.
  • Press Release

Court of Appeals Strengthens Government Transparency

August 1, 2016
An appellate court has ruled for an immigration group in a lawsuit against the Executive Office for Immigration Review (EOIR) challenging its response to a request for information regarding alleged misconduct by immigration judges and records that would reveal whether the agency adequately investigates and resolves complaints against immigration judges.
  • Press Release

Council Urges Prompt Appeal to the Supreme Court of Flawed Fifth Circuit Decision

July 20, 2016
In a disappointing but unsurprising decision, a divided panel of the Fifth Circuit Court of Appeals today denied the federal government’s appeal of the preliminary injunction that has temporarily stopped President Obama’s latest deferred action initiatives from being implemented.
  • Press Release

Immigration, Civil Rights and Labor Groups Join Legal Effort to Defend Immigration Action

July 19, 2016
Immigration, civil rights and labor groups joined the legal effort to defend President Obama’s recent executive action on immigration by filing an amicus “friend of the court” brief in the case, State of Texas vs. United States.
  • Press Release

Fifth Circuit Finds Motions to Reopen Can Be Equitably Tolled

July 10, 2016
The decision strongly reaffirms the importance of immigrants’ statutory right to file a motion to reopen, a procedural protection meant to ensure a proper and lawful outcome in an immigration proceeding.
  • Blog

SCOTUS to Decide When Courts Can Review Decisions about Immigration Relief… Again

December 15, 2023

Families are complicated. Especially during the holidays, that’s something we can all agree on. But most of us can’t – or will never have to – imagine being forcibly separated from our closest...

  • Practice Advisories

Common Tools of Statutory Construction for Criminal Removal Grounds

Publication Date: 
November 28, 2023
This practice advisory describes some of the common tools of statutory construction to assist practitioners in advocating for narrow definitions of generic criminal removal grounds...
  • Letters

Council, Partners, Renew Advocacy For Meaningful Access to Counsel in Detention

Publication Date: 
November 21, 2023
The American Immigration Council and nearly 90 legal service provider organizations sent a letter to ICE Acting Director Patrick Lechleitner highlighting the obstacles to attorney access that exist...
  • Advocacy

Comment on Executive Office for Immigration Review Proposed Rule Regarding Restoring Appeal Procedures and Administrative Closure

Publication Date: 
November 7, 2023
The American Immigration Council and the American Immigration Lawyers Association submitted this comment in support of the proposed rule, "Appellate Procedures and Decisional Finality in Immigration...
  • Press Release

Immigrant Rights Groups Sue for Information on Asylum Turnbacks

October 18, 2023
The American Immigration Council and the Center for Gender & Refugee Studies (CGRS) have filed a Freedom of Information Act (FOIA) lawsuit to compel the Biden administration to release information on its new policy of turning back people who request asylum without first obtaining an appointment via the government’s CBP One smartphone app.
  • Press Release

Court Allows Turnbacks of Asylum Seekers Without CBP One Appointments to Continue

October 13, 2023
A federal court in California denied a preliminary injunction in a legal challenge to the Biden administration’s policy of turning back asylum seekers who request protection without first obtaining an appointment via the government’s CBP One smartphone app.
  • Press Release

Court Hears Challenge to Asylum Turnback

October 13, 2023
On October 13, the U.S. District Court for the Southern District of California will hear arguments in Al Otro Lado and Haitian Bridge Alliance v. Mayorkas, a federal lawsuit challenging the Biden administration’s unlawful policy of turning back people seeking asylum without a CBP One appointment.
  • Blog

What Does the Looming Government Shutdown Mean for Our Immigration System?

September 28, 2023

After weeks of failed negotiations on spending, Congress has less than a week left to avert a potential government shutdown. Members of the House Republicans’ Freedom Caucus have refused to pass...

  • Blog

New Immigration Court Rule Would Protect Critical Docket Management Tools and Rescind Trump-Era Changes

September 14, 2023

The Department of Justice has proposed a new rule to protect immigration judges’ ability to administratively close removal proceedings and control their ever-expanding dockets. The proposed rule,...

  • Press Release

Newly Proposed Appellate Rule Would Overturn Trump-era Restrictions for Immigration Judges and Codify Judicial Discretion

September 8, 2023
On Thursday, the Biden administration proposed to rescind a Trump administration rule that stripped authority from immigration judges to manage their own dockets; here is our response.

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