Featured Issue: U.S. Immigration Courts under Trump 2.0
The U.S. immigration court system plays a critical role in upholding due process and ensuring fair hearings for individuals facing deportation. However, since January 20, 2025, the Department of Justice (DOJ) has implemented significant changes that challenge the structural integrity of these courts. This page aims to provide up-to-date information on the policy and legal shifts affecting the U.S. immigration court system.
Latest Updates
Updates from EOIR
Browse the Featured Issue: U.S. Immigration Courts under Trump 2.0 collection
CA9 Upholds BIA Denial of Cancellation, Finds Bribery a CIMT and “CIMT” Not Unconstitutionally Vague
The court held that bribery under 18 USC §666(a)(2) categorically matches federal definition of CIMT; it also held that “CIMT” is not unconstitutionally vague per Jordan and Tseung-Chu. (Martinez-de Ryan v. Whitaker, 11/16/18)
South Florida EOIR Stakeholders’ Meeting Notes (11/15/18)
Notes from the Miami EOIR Stakeholder Meeting on November 15, 2018.
CA5 Vacates Deportation Order, Holds Petitioner Was a Naturalized Citizen—Not Alien—on Date of Conviction and Not Subject to Removal Statute
The court held BIA erred in misapplying §1227(a)(2)(A)(iii) to a naturalized citizen at time of conviction; it found, per Costello, that a denaturalization could not retroactively make petitioner an “alien as matter of law” at time of conviction. (Okpala v. Whitaker, 11/15/18)
CA1 Upholds IJ/BIA Denial for Lack of Corroborating Evidence to Support Otherwise Inconsistent Claims
The court held that substantial evidence supported IJ/BIA denial because petitioner failed to adequately corroborate vague and inconsistent testimony of past persecution with reasonably-available evidence. (Avelar-Gonzalez v. Whitaker, 11/15/18)
Updated EOIR User Manual for Expanded Electronic Filing Pilot
EOIR provided an updated user manual on its expanded electronic filing pilot, effective November 15, 2018.
Memo for Counsel to the President on Designating an Acting Attorney General
DOJ issued a memorandum on the designation of an Acting Attorney General following the resignation of AG Sessions. The memo states that it previously advised the President that he could designate a senior DOJ official, such as Matthew G. Whitaker, and provides the basis for that conclusion.
EOIR Releases Guidance Regarding the Presidential Proclamation Addressing Mass Migration Through the Southern Border
EOIR released guidance on the presidential proclamation, stating that the suspension and limitation on entry applies only to individuals who entered after the date of the proclamation, thus applying to individuals who entered on 11/10/18, or later, until the expiration of the proclamation.
CA9 Votes to Deny Petitions for Rehearing and Rehearing En Banc for Class of Unrepresented Children in Removal Proceedings Claiming Right-to-Counsel
The court denied, pursuant to §1252(b)(9), the habeas petitions for a class of thousands of children seeking asylum, SIJS, or relief from removal who claim due process and statutory rights to appointed counsel during their removal hearings. (J.E.F.M. v. Whitaker, 11/13/18)
BIA Holds Texas Retaliation Not an Aggravated Felony or CIMT
Unpublished BIA decision holds that retaliation under Texas Penal Code 36.06(a) is not an aggravated felony relating to obstruction of justice or a CIMT. Special thanks to IRAC. (Matter of Romero Canchola, 11/13/18)
Serving Those Who Serve Our Country
As we reflect on Veterans Day, this blog post offers insights into the impact of immigration law on members of the military and their families and encourages AILA members to “help a service member by bringing immigration legal expertise and a caring heart to bear on these important cases.“
AILA Submits Amicus Brief Challenging the Attorney General’s Irregular Certification Process
AILA submitted an amicus brief challenging the irregularities and potential abuse of power in the Attorney General’s certification process, stating that the current process has “significant cracks and breaks which cannot rightly hold the water as intended.”
CA9 Reviews “Particularly Serious Crime” Language In Light of Johnson and Dimaya, Holds Statute Is Not Unconstitutionally Vague
The court overturned its prior standard for assessing vagueness, but maintained “particularly serious crime” was not unconstitutionally vague; it held that while statute’s standard is uncertain, it is applied to real world facts as opposed to idealized crimes. (Guerrero v. Whitaker, 11/9/18)
USCIS Provides Procedural Guidance on Implementing Regulatory Changes Created by Interim Final Rule
USCIS issued procedural guidance to provide USCIS asylum officers with guidance for considering and processing claims of asylum, statutory withholding of removal, and protection under CAT, including in the credible fear context, to conform to the Interim Final Rule (83 FR 55934, 11/9/18).
CA9 Affirms Preliminary Injunction Requiring DHS to Adjudicate DACA Renewal Applications
The court issued an opinion affirming the district court’s 1/9/18 entry of a preliminary injunction requiring DHS to adjudicate renewal applications for existing DACA recipients. (Regents of the University of California v. DHS, 11/8/18)
USCIS to Continue Implementing New Policy Memorandum on Notices to Appear
USCIS announced that starting 11/19/18, it may issue Notices to Appear (NTAs) based on denials of Forms I-914, I-914A, I-918, I-918A, I-360, I-929, I-730, and I-485 as part of its continued implementation of its 6/28/18 policy memo on issuance of NTAs.
Trump Administration Issues Advance Copy of Rule Intended to Gut Asylum Seekers’ Due Process Rights
AILA responded to the advance copy of an interim rule issued by the Trump administration that would gut asylum seekers’ due process rights; a presidential proclamation is expected Friday, November 9, 2018.
CA9 Grants Review in Two Cases, Holds BIA Erred in Finding CA Penal Code §288(c)(1) Categorically CIMT and Categorically “Crime of Child Abuse”
The court held statute overbroad in actus reus and mens rea compared to generic CIMT and “child abuse” provisions; it lacks CIMT’s corrupt scienter and intent to/actually injure, and does not match “child abuse” elements of intent/actual injury/risk of harm. (Menendez v. Whitaker, 11/8/18)
CA5 Affirms BIA’s Refusal to Reopen, Finds Petitioner Was Not Entitled to Actual Notice of Hearing and Failed to Rebut Presumption of Delivery
The court held BIA was not arbitrary in determining that because petitioner failed to correct address error on personally-served NTA, he was not entitled to actual notice; and that affidavit did not rebut presumption of delivery of unreturned NOH. (Mauricio-Benitez v. Sessions, 11/8/18)
BIA Holds Pennsylvania PWID Not an Aggravated Felony
Unpublished BIA decision holds possession of marijuana with intent to manufacture/deliver under 35 Pa. Cons. Stat. 780-113(a)(30) is not an aggravated felony because the statute is overbroad and indivisible as to the quantity involved. Special thanks to IRAC. (Matter of Wilkins, 11/8/18)
BIA Holds Puerto Rico Aggravated Battery Statute Not a Crime of Violence
Unpublished BIA decision holds that aggravated battery under former 33 L.P.R.A. 4032 is not a crime of violence because the predicate offense of simple battery does not require use of force. Special thanks to IRAC. (Matter of J-V-L-, 11/7/18)
CA7 Upholds IJ/BIA Denial of Withholding for Lack of Nexus to Particular Social Group
The court held that the IJ/BIA determination that petitioner failed to prove that a gang attack in Mexico was due to family membership since no other family member ever was threatened or attacked was supported by substantial evidence. (Plaza-Ramirez v. Sessions, 11/7/18)
TRAC Report: Immigration Court Backlog Surpasses One Million Cases
TRAC found the Immigration Court backlog has jumped by 225,846 cases since the end of January 2017 when President Trump took office. This represents an overall growth rate of 49 percent since the beginning of FY2017.
AILA and the Council Submit Comments Opposing Flores Regulations
AILA and the American Immigration Council comments opposing proposed regulations related to the Flores Settlement Agreement (FSA). The comments note the regulations would allow for the indefinite detention of children and violate the terms and spirit of the FSA. Special thanks to Fried Frank.
AG Refers BIA Case to Himself and Invites Amicus Regarding Coercion and Duress
The Attorney General referred a BIA decision to himself for review on whether coercion and duress are relevant to the application of the persecutor bar. The Attorney General extended the deadline for amicus briefs to 11/30/18. Matter of Negusie, 27 I&N Dec. 481 (A.G. 2018)
CA9 Denies Petition, Holds 8 CFR §274a.12(b)(20)’s Regulatory Employment Authorization Does Not Confer Lawful Status for INA §245(k) AOS Purposes
The court held grant of employment authorization under 8 CFR §274a.12(b)(20) is not one of the 8 CFR §1245.1(d)(1) categories of lawful status eligible for INA §245(k)’s 180-day exception; thus, petitioner, though working validly, failed to maintain lawful status. (Ma v. Sessions, 11/2/18)