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
USCIS and EOIR Delay Effective Date of Final Rule on Pandemic-Related Security Bars to Asylum and Withholding of Removal
USCIS and EOIR document delaying the effective date of the final rule “Security Bars and Processing” (85 FR 84160, 12/23/20), which was scheduled to become effective on 1/22/21. The effective date is delayed until 3/22/21. (86 FR 6847, 1/25/21)
CA4 Holds That BIA Erred in Finding Petitioner’s “Former Salvadoran MS-13 Members” PSG Lacked Particularity
Granting in part the petition for review, the court found to be unreasonable the BIA’s determination that the petitioner’s proposed particular social group (PSG) of “former Salvadoran MS-13 members” lacked particularity, and thus remanded his withholding claim. (Amaya v. Rosen, 1/25/21)
Practice Alert: Federal Court Grants Partial Injunction of Proposed EOIR Fee Increases
AILA’s EOIR/ICE Liaison Committee provides a Practice Alert on a recent partial injunction that delayed implementation of the more egregious increases in immigration court fees for individuals in removal proceedings. The enjoined fee increases were scheduled to take effect on January 19, 2021.
BIA Rules §58-37-8(2)(a)(i) of the Utah Code Is Divisible with Respect to the Specific Controlled Substance Involved in Statute Violation
The BIA ruled that §58-37-8(2)(a)(i) of the Utah Code, which criminalizes possession or use of a controlled substance, is divisible with respect to the specific “controlled substance” involved in a violation of that statute. Matter of Dikhtyar, 28 I&N Dec. 214 (BIA 2021)
CA3 Remands Where BIA Failed to Consider Petitioner’s Request for Equitable Tolling on the Merits
Vacating the BIA’s order denying the petitioner’s motion to reopen and remanding, the court held that the BIA erred in failing to consider the petitioner’s request for equitable tolling on the merits, because she had properly raised the issue before the BIA. (Nkomo v. Att’y Gen., 1/21/21)
AILA and Partners Submit Amicus Brief on the Meaning and Application of “Arriving” Language in INA §235(b)(2)(C)
AILA and partners submitted a brief in response to BIA’s amicus invitation on determining an “arriving alien,” arguing that returning noncitizens apprehended 50 miles inside U.S. to Mexico for pending removal proceedings is improper because it runs afoul of the plain language of INA §235(b)(2)(C).
DHS Acting Secretary Issues Memorandum on Immigration Enforcement Policies
Acting DHS Secretary Pekoske issued a memorandum directing DHS components to conduct a review of immigration enforcement policies, and setting interim policies for civil enforcement during that review. Beginning 1/22/21, DHS will pause removals of certain noncitizens ordered deported for 100 days.
Pro Bono Matters for Children Facing Deportation
The ABA’s Children’s Immigration Law Academy recently launched Pro Bono Matters for Children Facing Deportation in collaboration with nonprofit legal service providers. Attorneys interested in assisting youth facing deportation may find pro bono opportunities on this searchable platform.
The Office of the Immigration Detention Ombudsman Releases 2020 Annual Report
The Office of the Immigration Detention Ombudsman provided its 2020 annual report with information about the office’s mission, detention facilities and standards, detention challenges faced during the year, existing challenges with compliance, site visits and medical findings, and more.
EOIR Releases Policy Memo on Adjudicator Independence and Impartiality
EOIR issued a policy memo (PM 21-15) reiterating and memorializing EOIR’s policy regarding adjudicator independence and impartiality. The memo notes that it remains EOIR policy that adjudicator decisions should be based solely on the record before the adjudicator and the applicable law.
TRAC Releases Report on the State of the Immigration Courts
TRAC released a report on the immigration court backlog, which rose to 1.3 million during the Trump administration. The report includes information on length of wait times, backlogs and wait times across the country, grounds alleged by government, backlogs and wait times by nationality, and more.
District Court Halts Most of EOIR Filing Fee Rule from Going into Effect
A district court judge issued a nationwide stay of the effective date of the 12/18/20 EOIR final fee review rule and a preliminary injunction to enjoin most of its implementation. The rule was set to go into effect on 1/19/21. (CLINIC, et al., v. EOIR, et al., 1/18/21)
Policy Brief: The Biden Administration and Congress Must Guarantee Legal Representation for People Facing Removal
AILA and the Council issued a policy brief calling upon the Biden administration to expand federally-funded legal representation programs for people facing removal, arguing that legal representation ensures due process and efficiency, reduces the detention of immigrants, and reduces court backlog.
Acting Attorney General Issues New Decision in Matter of A-B-
The Acting Attorney General provided additional guidance on asylum cases involving applicants who claim persecution by non-government actors and membership in a PSG and remanded to the Board to issue a new opinion consistent with this opinion. Matter of A-B- 28 I&N Dec. 199 (A.G. 2021)
CA7 Remands Petitioner’s Request for Administrative Closure After Finding BIA Did Not Exercise Its Discretion According to Law
The court held that the petitioner was entitled to have his request for administrative closure considered as a proper exercise of discretion under law, including BIA precedents and the factors set forth in Matter of Avetisyan and Matter of W-Y-U. (Zelaya Diaz v. Rosen, 1/15/21)
CA7 Finds BIA Did Not Err in Denying Asylum to Mexican Petitioner Whose Family Was Targeted by Sinaloa Cartel
The court held that substantial evidence supported the BIA’s determination that the petitioner had failed to establish the requisite nexus between his fear of persecution from the Sinaloa Cartel upon return to Mexico and his family membership. (Meraz-Saucedo v. Rosen, 1/15/21)
CA8 Affirms BIA’s Denial of Deferral of Removal to Somali Petitioner Who Feared Torture by Al-Shabaab for Minority-Clan Membership
The court affirmed the BIA’s decision denying petitioner’s request for deferral of removal to Somalia, finding that substantial evidence supported the IJ’s and BIA’s conclusions that he was unlikely to be tortured by Al-Shabaab due to his minority-clan membership. (Hassan v. Rosen, 1/15/21)
USCIS Issues Policy Guidance on Applications for Discretionary Employment Authorization Involving Certain Adjustment Applications or Deferred Action
USCIS issued policy guidance in the USCIS Policy Manual on applications for employment authorization filed by individuals with pending INA §245 adjustment applications or who have been granted deferred action, including how officers should apply discretion in the adjudication of these applications.
CA9 Reverses and Remands Habeas Petition Denial Where Petitioner Claimed His ICE Arrest Was Retaliation for Protected Speech
Where the petitioner had filed a petition for a writ of habeas corpus under 8 USC §2241 arguing that his immigration arrest and re-detention was retaliation for his protected speech, the court reversed the district court’s denial of the petition and remanded. (Bello-Reyes v. Gaynor, 1/14/21)
GAO Releases Report on ICE Detention Facility Contracts
GAO released a report on ICE detention facility contracts, finding that ICE did not follow its process for obtaining new detention space and does not have a strategic approach to using guaranteed minimum payments. GAO found that ICE has spent millions of dollars a month on unused detention space.
EOIR Issues Policy Memo on Rulemakings and Federal Court Orders
EOIR issued a policy memo (PM 21-14) noting that there is no conflict between any rules issued by EOIR in 2020 and any applicable federal court order. Nevertheless, if adjudicators perceive a conflict, they should adhere to the terms of the federal court order.
CA6 Says BIA Abused Its Discretion by Finding That No Exceptional Circumstances Justified Minor Petitioner’s Failure to Appear
The court held that, based on the totality of the circumstances, including petitioner’s young age and her inability to travel from New York to Memphis for the hearing, the petitioner had established exceptional circumstances justifying her failure to appear. (E. A. C. A. v. Rosen, 1/12/21)
CA1 Remands Asylum and Withholding Claims of Iraqi National Who Worked for U.S. Army During War
The court vacated and remanded the BIA’s denial of the asylum and withholding of removal claims of the petitioner, who feared that he would be subjected to harm on account of his work as a paid contractor for the U.S. Army during the war in Iraq. (Al Amiri v. Rosen, 1/11/21)
CA9 Upholds Denial of Asylum to Pakistani National Who Claimed He Feared Persecution from Taliban
The court held that the IJ had provided the pro se petitioner with a full opportunity to present testimony, and found the BIA did not err in concluding that petitioner’s description of generalized violence failed to meet his burden to show targeted persecution. (Hussain v. Rosen, 1/11/21)
Supreme Court Vacates Decision of Ninth Circuit in ICE v. Padilla
The U.S. Supreme Court granted the petition for a writ of certiorari, vacated the judgment of the Ninth Circuit, and remanded for further consideration in light of DHS v. Thuraissigiam. (ICE, et al. v. Padilla, et al., 1/11/21)