Practice Alert: EOIR Is Circulating Misleading Legal Advisories to Respondents
On or about April 14, 2025, AILA began receiving reports of new flyers posted in Executive Office of Immigration Review (EOIR) courts nationwide entitled, “Message to Illegal Aliens: A Warning to Self-Deport.” The flyers, which bear the U.S. Department of Justice (DOJ) insignia, list several confusing and misleading statements as to the purported “benefits” and “consequences” of self-deportation. AILA members have reported that these flyers were posted in EOIR spaces, including lobbies and courtrooms. Members also report that EOIR is sending flyers to respondents with scheduling orders, grant orders, and Board of Immigration Appeals (BIA) packages, and in some cases, uploading them into the eROP via ECAS. AILA recommends that attorneys and clients be aware of these notices and gives the following advice when interacting with this information.
The flyers include the following confusing, misleading, and/or incorrect information:
“Message to Illegal Aliens: A Warning to Self-Deport”
The title addresses “illegal aliens” but does not define the term or distinguish which respondents the DOJ references in removal proceedings. Reports show that these flyers are being posted publicly and provided directly to respondents, even those granted relief. This type of generalized language is confusing and may lead some individuals to believe it applies to them because they are receiving this flyer from an immigration judge, even when some of its messages are wrong or inapplicable.
“Self-deportation is safe. Leave on your own terms by picking your departure flight.”
There is no recognition that many respondents are in different procedural postures, some individuals do not have a safe country to return to, and some may already be applying for humanitarian protection. While picking one’s flight may be an option to consider for those with a final order, leaving the country before concluding removal proceedings risks being ordered removed in absentia after failing to appear at their next hearing.
“Keep money earned in the U.S. If you self-deport as a non-criminal illegal alien.”
It is unclear what this statement references. Even if the DOJ is referring to fines that may be placed on individuals, this does not mean that money earned in the United States will be forfeited.
“Future opportunity for legal immigration. If you self-deport using CBP Home instead of being deported by ICE.”
This statement fails to mention the grounds of inadmissibility associated with departure following an order of removal at INA §212(a)(9)(A). It also does not communicate that departing the United States after a period of unlawful presence triggers grounds of inadmissibility, which can create temporary or permanent bars to future legal immigration under INA §212(a)(9)(B). As noted above, “self-deporting” while in pending removal proceedings can subject you to an in absentia order of removal, which results in a non-waivable five-year bar to re-entry for failure to attend a hearing under INA § 212(a)(6)(B).
“Immediate deportation. You will be apprehended by DHS with no opportunity to get your affairs in order beforehand.”
This statement does not specify who will be apprehended with no opportunity to get affairs in order. The lack of clarity risks sending a message to all recipients that they are subject to immediate apprehension and deportation if they do not self-deport, even if they are still in removal proceedings, have a valid basis to challenge their removability, and/or are applying for relief from removal consistent with their statutory, regulatory, and constitutional rights. The statement also fails to acknowledge that respondents have a statutory right to appeal an immigration judge’s decision and cannot be removed while the decision is on appeal. EOIR’s distribution of these misleading flyers, including at respondents’ tables and with scheduling orders in some courts, is incompatible with the requirement at 8 CFR §1240.11, providing, “The immigration judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter…”
“Fines and penalties. A fine $998 per day if you received a final order of removal and stayed. A fine of $1,000-$5,000 if you fail to self-deport after claiming that you will.”
This claim does not define a final order of removal and fails to mention the right to appeal or explain that an order is not final until the BIA renders a decision on any appeal.
“Possible imprisonment. If you fail to self-deport, you may be subject to jail time.”
It is unclear if this statement refers to the possibility of new criminal charges or to being detained by immigration authorities while they work to execute the order of removal. It also fails to acknowledge that those in pending removal proceedings who have already been released on bond generally cannot be re-detained absent changed circumstances.
“Barred from returning. Prohibited from reentering the U.S. through the legal immigration system.”
Individuals with a final order of removal who depart the United States are subject to inadmissibility at INA §212(a)(9)(A) for a period of 10 years and would need to file Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, to seek admission again in the future. However, it is unclear what authority the DOJ deems to apply to those who “self-deport,” because there is no such established legal process or category under the U.S. immigration laws. Rather, as noted above, those who “self-deport,” i.e. leave the country, while in pending removal proceedings may still be subject to inadmissibility under INA §212(a)(9)(B) due to having accumulated unlawful presence, or they risk receiving an order of removal in absentia. Thus, this implication that those who “self-deport” will not be barred from future reentry is legally inaccurate and misleading.
Practice Tip
AILA has received reports of the flyers being uploaded to ECAS in some cases. In other cases, they are being provided in person or sent in an email along with the immigration judge’s order. We recommend ensuring that these flyers are in the Record of Proceedings in all cases to preserve possible due process arguments that may arise on appeal. If hired after the respondent relied on the advisements to their detriment, attorneys may consider submitting the flyer along with a client declaration on their reliance in support of a motion to reopen or a motion to remand.