Due Process and the Courts

Our legal system rests upon the principle that everyone is entitled to due process of law and a meaningful opportunity to be heard. But for far too long, the immigration system has failed to provide noncitizens with a system of justice that lives up to this standard. Learn about ways in which the immigration system could ensure that all noncitizens have a fair day in court.  

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

  • FOIA

Access to Counsel Before ICE FOIA

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 Immigration and Customs Enforement...

  • FOIA

Video Hearings in Immigration Court FOIA

Beginning in the mid-1990s, the Executive Office for Immigration Review (EOIR) began using video hearing equipment in immigration courts across the country. As a result, frequently a noncitizen facing removal is deprived of the opportunity to appear in person before an immigration judge. Video hearings are more common where a noncitizen is detained, though many non-detained individuals are subjected to video hearings as well. EOIR uses video hearings for both preliminary hearings (“master calendar hearings”) and merits hearings (“individual hearings”). In February 2012, the American Immigration Council submitted a Freedom of Information Act (FOIA) request to EOIR asking for records related to video teleconferencing (VTC). EOIR produced two sets of records.
  • Advocacy

Letter by the Council and AILA urging USCIS to address reports of widespread and recurrent restrictions on access to counsel. (Mar. 24, 2011)

In this March 24, 2011 letter, the Council and AILA urged USCIS to address reports of widespread and recurrent restrictions on access to counsel. These restrictions, documented in a nation-wide survey (http://www.aila.org/infonet/final-results-attorney-representation-before-dhs) of immigration attorneys, included limitations on attorneys’ ability to communicate with their clients, restrictions on attorney seating during USCIS interviews, and limitations on attorneys’ ability to submit documents to the interviewing officer.
  • Advocacy

Council and AILA comments to the DOJ/EOIR regarding the “Retrospective Regulatory Review” (Nov. 27, 2012)

Pertaining to regulations on motions to reopen, stays of removal, bond hearings, telephonic and video hearings, filing and service of documents and decisions, and stipulated removal orders.
  • Advocacy

Comments on the Immigration Adjudication Draft Report by the Administrative Conference of the United States (ACUS) (Feb. 13, 2012)

Addressing representation, stipulated removal orders , prosecutorial discretion, video hearings, and the asylum clock.
  • Advocacy

Testimony submitted to the Senate Judiciary Committee for May 18, 2011 hearing, “Improving Efficiency and Ensuring Justice in the Immigration Court System.”

Addressing access to counsel, effective assistance of counsel, protections for noncitizens lacking mental competency, the employment authorization employment clock, and the departure bar to motions to reopen.
  • Advocacy

Letter to DOJ in response to request for comments regarding the Department’s review of its existing regulations (Mar. 31, 2011)

Regarding the departure bar to motions to reopen, ineffective assistance of counsel, fair removal procedures for noncitizens with mental disabilities, and asylum clock problems.
  • Advocacy

Comments on EOIR’s proposed rule on streamlining BIA cases (Aug. 18, 2008)

Addressing the BIA's affirmance without opinion process, three-member panel decisions, and precedent decisions, as well as exhaustion of administrative remedies and the scope of administrative review
  • Advocacy

Providing a Safety Valve: The Need for Greater Discretion in Immigration Decision Making (Jun. 6, 2013)

Discussing efforts in S. 744, “The Border Security, Economic Opportunity, and Immigration Modernization Act,” to restore a measure of discretion and flexibility to the immigration system.
  • Advocacy

Letter to EOIR recommending possible steps to take to protect the right to effective assistance of counsel (Nov. 12, 2009)

In November 2009, the American Immigration Council sent a letter to the Executive Office for Immigration Review recommending steps the immigration courts and the Board of Immigration Appeals can take to protect the right to effective assistance of counsel and help ensure that noncitizens in removal proceedings are afforded a fair hearing.
  • Blog

A Judge Fully Reinstated DACA, but Dreamers Are Still in Danger

December 7, 2020

A federal judge in New York has overturned the Trump administration’s latest effort to limit the Deferred Action for Childhood Arrivals (DACA) initiative. DACA temporarily protects certain people...

  • Blog

How Two Proposed Rules Make It Harder for Immigration Judges to Manage Their Docket

December 3, 2020

The Executive Office for Immigration Review (EOIR) has proposed two rules that would significantly decrease the due process rights of people in immigration court. Both rules would restrict judges...

  • Blog

Federal Court Invalidates Changes to DACA Because Chad Wolf Was Unlawfully Appointed

November 16, 2020

A judge has ruled that recent changes to Deferred Action for Childhood Arrivals (DACA) that were a veiled attempt to gut the program are invalid because Chad Wolf—the acting secretary of the...

  • Blog

Trump’s Public Charge Rule Blocked Yet Again in Court

November 2, 2020

Update: On November 5, the Seven Circuit Court of appeals placed an administrative stay on the district court’s ruling, restoring the public charge rule at least temporarily. The Trump...

  • Blog

The Government Wants Immigrants to Show Up for Court—But Neglects to Tell Them How to Attend Their Hearings

October 29, 2020

Over 60,000 people at the southern border have been forced to return to Mexico under the Trump administration’s Migrant Protection Protocols (MPP), also known as the “Remain in Mexico” program. As...

  • Blog

The Value of Pro Bono Legal Services in Immigration Detention

October 28, 2020

Once a year, National Pro Bono Week celebrates the pro bono work of lawyers, paralegals, and law students. Pro bono legal services—which come at no cost—are integral for many people otherwise left...

  • Blog

Department of Justice Eliminates Diversity and Inclusion Training for All Immigration Judges

October 13, 2020

At a time when tensions over race in the United States are high, the U.S. Department of Justice (DOJ) announced in an October 8 memo that it will cancel all diversity and inclusion trainings for...

  • Blog

New Data Disproves Trump Administration’s Push to End Administrative Closure

September 16, 2020

The Trump administration’s justification for ending administrative closure is on thin ice. A new report casts doubt on key arguments presented in a proposed regulation that would end the practice...

  • Blog

Ninth Circuit Court Allows Trump’s Plan to End Temporary Protected Status to Go Forward

September 14, 2020

In a split decision, the Ninth Circuit Court of Appeals ruled that the Trump administration’s termination of Temporary Protected Status (TPS) for four countries can proceed. The fate of nearly 250...

  • Blog

ICE Makes It Almost Impossible for People to Make Phone Calls from Detention Centers, Even in a Pandemic

August 27, 2020

Communication with the outside world is crucial for people in jail. This includes individuals facing deportation while detained in immigration detention centers, who do not have the right to court...

  • Press Release

Class Action Lawsuit for Unlawful Delays in Employment Authorizations Filed

June 10, 2015

Washington D.C.– Last Friday, three immigrants and two immigration service providers filed a nationwide class action lawsuit against U.S.

  • Press Release

Divided Fifth Circuit Denies Emergency Stay as Underlying Case on Immigration Action Proceeds

May 26, 2015

Washington D.C. - In a disappointing decision, a divided panel of the Fifth Circuit Court of Appeals today  denied  the federal government’s request for an emergency stay of a preliminary in

  • Press Release

Texas Decision at Odds with Legal Precedent, History and Facts on Immigration Enforcement

February 17, 2015
  • Press Release

Second Circuit Narrowly Interprets Aggravated Felony Bar Under INA § 212(h)

January 27, 2015

Washington, D.C.—Recently, the U.S.

  • Press Release

Second Circuit Narrowly Interprets Aggravated Felony Bar Under INA § 212(h)

January 22, 2015

Washington, D.C.—Recently, the U.S.

  • Press Release

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

December 29, 2014

Washington D.C. - Today, immigration, civil rights and labor groups joined the legal effort to defend President Obama’s recent executive action on immigration by filing an

  • Press Release

U.S. District Court in D.C. Hears First Arguments Against Executive Action on Immigration

December 22, 2014

Washington D.C. - Today, the U.S.

  • Press Release

U.S. District Court in D.C. Hears First Arguments Against Executive Action on Immigration

December 22, 2014

Washington D.C. - Today, the U.S.

  • Press Release

The Sixth Circuit Joins Growing Majority, Rejects BIA’s Narrow Interpretation of Section 212(h)

September 25, 2014

Washington, D.C.—Wednesday, the U.S.

  • Press Release

Immigration Council Urges U.S. Department of Labor to Ensure Fairness

September 17, 2014

Washington, D.C.

  • Practice Advisories

Delay Actions In The Asylum Context: Avoiding Dismissal And Proving The Case

Publication Date: 
November 24, 2022
This Practice Advisory provides information for filing a delay action in federal district court under the Mandamus Act and the Administrative Procedure Act (APA) for an asylum applicant who is awaiting an interview or a final decision on their affirmative asylum claim. It discusses the required elements of a successful APA and mandamus actions and jurisdictional hurdles. The advisory also addresses asylum-specific case law and arguments, including USCIS’s use of the “Last-In, First-Out” processing and statistics showing the growing asylum backlog.
  • Letters

Letter Requesting Improved Language Access for Unaccompanied Children

November 2, 2022

The American Immigration Council joined a team of nonprofits across the country to write a letter to Office of Refugee Resettlement (ORR) Director Robin Dunn Marcos to express concern over lack of...

  • FOIA

Seeking Records on Why Immigrants’ Hearings Are Being Moved Up Without Much Notice to Them or Their Lawyers

This Freedom of Information Act (FOIA) request seeks records from the Executive Office for Immigration Review (EOIR) about its practice of moving up the date of immigrants’ individual hearings with little to no notice to their lawyers.
  • Blog

71% of Immigrants Win Their Cases Thanks to Pro Bono Volunteers with the Immigration Justice Campaign

October 27, 2022

Every year at the end of October, legal service providers come together to celebrate Pro Bono Week. It is a dedicated opportunity to acknowledge the amazing work that our volunteers do—work that...

  • Blog

Legal Service Providers Sue to Remove Barriers to Access to Counsel in Immigration Detention

October 13, 2022

Legal service organizations have sued U.S. Immigration and Customs Enforcement (ICE) for preventing people jailed at four immigration detention centers from having meaningful access to their...

  • Press Release

Legal Organizations Sue ICE for Illegally Preventing Attorneys from Communicating with Detained Immigrants in Four States

October 13, 2022
Several legal services organizations filed a lawsuit today against Immigration and Customs Enforcement (ICE) for unlawfully preventing attorneys from communicating with immigrants detained in four detention facilities in Florida, Louisiana, Texas, and Arizona.
  • Litigation

Challenging the Government’s Barriers to Access to Counsel in Immigration Detention Centers

This lawsuit challenges ICE's policies that have made it extremely difficult—and in many cases impossible—for people in immigration detention to access their attorneys.
  • Blog

DACA Is Facing a Crisis That the Senate Can No Longer Ignore

October 7, 2022

Written by Jorge Loweree and Raul Pinto of the American Immigration Council More than a decade after the U.S. Department of Homeland Security (DHS) first created the Deferred Action for Childhood...

  • FOIA

Seeking Records About Possible Due Process Violations of Detainees at the Torrance Detention Facility

These Freedom of Information Act (FOIA) requests seek records from U.S. Immigration and Customs Enforcement (ICE) and the Executive Office for Immigration Review (EOIR) about treatment of Haitian immigrants.
  • Practice Advisories

Whom to Sue and Whom to Serve in Immigration-Related District Court Litigation

Publication Date: 
September 14, 2022
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.

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