Practice Advisories

Last modified: 
January 8, 2024
Publication Date: 
January 8, 2024
The practice alert explains the scope of a class settlement agreement in Padilla v. ICE that provides protections for detained asylum seekers who face prolonged delays before receiving their credible fear interviews.
Last modified: 
January 8, 2024
Publication Date: 
January 8, 2024
This Practice Advisory has information practitioners need to assess whether filing suit in federal court is the right option for challenging an employment-based petition denial.
Last modified: 
November 28, 2023
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 before the...

Last modified: 
October 20, 2023
Publication Date: 
June 30, 2021
This practice advisory by the Council and partners provides an overview of the Niz-Chavez v. Garland decision and its impact on eligibility for cancellation of removal; eligibility for post-conclusion voluntary departure and broader applications of the decision.
Last modified: 
August 22, 2023
Publication Date: 
August 22, 2023
This practice advisory looks into the decision by the U.S. Supreme Court issued in Pugin v. Garland, 143 S. Ct. 1833 (2023). This immigration decision addressed the generic definition of the obstruction of justice aggravated felony ground at 8 U.S.C. § 1101(a)(43)(S).
Last modified: 
June 20, 2023
Publication Date: 
June 20, 2023
This Practice Advisory provides immigration practitioners with step-by-step instructions about how to file a lawsuit under the Freedom of Information Act.
Last modified: 
April 26, 2023
Publication Date: 
May 19, 2021
This Practice Advisory provides a broad overview of the Freedom of Information Act (FOIA), including how to make a FOIA request and how to appeal an inadequate response.
Last modified: 
April 17, 2023
Publication Date: 
December 16, 2022
This practice advisory explains 1) the ways to submit a FOIA request for a client’s immigration records, or A-File, 2) provides suggestions for avoiding agency rejections of the requests, and 3) identifies issues related to the Nightingale injunction that class counsel are monitoring.
Last modified: 
December 16, 2022
Publication Date: 
December 16, 2022
Practitioners who challenge delays in visa processing often face a motion to dismiss based on the consular nonreviewability doctrine. This practice tip examines the scope of the doctrine. It provides arguments, with supporting documentation, to oppose common situations that the government claims are final, nonreviewable decisions.
Last modified: 
December 13, 2022
Publication Date: 
December 13, 2022
Our comprehensive guide on obtaining detention records provides a brief overview of FOIA requirements, information about the types of records government agencies possess, tips about how to request those records, and an overview of what to expect after submitting the request.
Last modified: 
November 24, 2022
Publication Date: 
November 1, 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.
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.
Publication Date: 
April 25, 2022

This practice advisory provides a basic overview of motions to reopen removal orders that are filed with the Executive Office for Immigration Review (EOIR), which consists of immigration courts...

Publication Date: 
April 25, 2022
This practice advisory identifies who falls under the classification of “arriving noncitizens,” discusses the regulations delineating USCIS vs. EOIR jurisdiction over adjustment applications of arriving noncitizens in removal proceedings and suggests strategies to facilitate the adjustment of status of eligible parolees in removal proceedings before they are removed.
Publication Date: 
February 8, 2022

In Matter of Laparra, 28 I&N Dec. 425 (BIA 2022), the Board of Immigration Appeals (BIA) rejected notice-based arguments for rescinding and reopening an in...

Publication Date: 
January 18, 2022
This practice advisory provides a brief overview of administrative closure and explains the impact of that decision on the future availability of administrative closure, as well as on cases that are currently administratively closed.
Publication Date: 
October 4, 2021
This Practice Advisory discusses the primary issues involved in a suit brought under the Administrative Procedure Act (APA) to challenge an unlawful agency action.
Publication Date: 
July 19, 2021
This practice advisory provides an overview of the Supreme Court’s decision in Bivens, the benefits and risks of bringing a Bivens claim, and practical and legal information about filing a Bivens claim in federal court.
Publication Date: 
March 1, 2021
This Frequently Asked Questions document addresses the status of the case and explains options for first time asylum seekers applying for employment authorization.
Publication Date: 
February 19, 2021
This Practice Advisory provides basic information about filing an immigration-related delay action in federal district court under both the Mandamus Act and the APA. It discusses the required elements of a successful mandamus and APA actions as well as jurisdictional concerns that may arise.
Publication Date: 
November 20, 2020
This practice tip responds to a frequent question from attorneys new to federal court litigation who filed a lawsuit claiming the government violated the Administrative Procedure Act.
Publication Date: 
August 14, 2020
In the immigration context, Equal Access to Justice Act fees generally are available in petitions for review, mandamus actions, Administrative Procedure Act suits, habeas corpus actions, and naturalization actions.
Publication Date: 
April 22, 2020
This practice advisory discusses the standards of review that the Board of Immigration Appeals is required to employ when it reviews appeals of immigration judge decisions.
Publication Date: 
March 31, 2020
This Practice Advisory helps immigration attorneys who file petitions for review to challenge removal orders in the circuit courts.
Publication Date: 
October 4, 2019
This practice advisory summarizes the most common grounds raised by the government in motions to dismiss federal court agency adjudication delay lawsuits and outlines arguments that can be made in response.
Publication Date: 
July 11, 2019
These template materials will assist attorneys representing individuals with final removal orders issued by the Executive Office for Immigration Review.
Publication Date: 
May 23, 2019
This practice advisory provides an overview of the reinstatement statute and implementing regulations, including how the Department of Homeland Security (DHS) issues and executes reinstatement orders.
Publication Date: 
February 27, 2019
This Practice Advisory provides legal and procedural arguments and strategies for attorneys representing noncitizens.
Publication Date: 
December 21, 2018
The rationale underlying the Court’s decision, however, more broadly affects both ongoing and closed cases initiated by defective Notices to Appear. This practice advisory provides an overview of the Pereira v. Sessions decision and its impact on eligibility for cancellation of removal and post conclusion voluntary departure.
Publication Date: 
September 10, 2018
This Practice Advisory provides a practitioner-focused overview of motions to continue a case in removal proceedings, from the basics of making the motion to advanced issues of jurisdictional bars to appellate review of continuances.
Publication Date: 
December 20, 2017
This Practice Advisory addresses when the voluntary departure period runs and the events that cause automatic termination of a voluntary departure order; the serious consequences that result from failing to depart; and when these consequences do not apply.
Publication Date: 
September 5, 2017
This Practice Advisory is designed to assist attorneys in determining whether individuals seeking Deferred Action for Childhood Arrivals might be eligible for immigration benefits.
Publication Date: 
August 1, 2017
This Practice Advisory discusses some of the legal issues that may arise when noncitizens in removal proceedings move to suppress evidence obtained through constitutional violations by state and local officers seeking to enforce immigration law.
Publication Date: 
August 1, 2017
This Practice Advisory addresses some of the legal issues that may arise when noncitizens in removal proceedings seek to suppress evidence unlawfully obtained by Customs and Border Protection officers.
Publication Date: 
August 1, 2017
This Practice Advisory provides a general overview of motions to suppress, a tool used to prevent the introduction of evidence obtained by federal immigration officers in violation of the Fourth Amendment, Fifth Amendment, and related provisions of federal law.
Publication Date: 
September 26, 2016
This Practice Advisory discusses whether and how a person can get review of a U.S. Citizenship and Immigration Services decision in federal court if he or she did not appeal the decision to the Administrative Appeals Office (AAO). The Advisory addresses the Supreme Court case Darby v. Cisneros, holding that a plaintiff is not required to exhaust non-mandatory administrative remedies in certain situations, and how it may apply to cases involving appeals to the AAO.
Publication Date: 
September 14, 2016

This Practice Tip demystifies mandamus by explaining how and when to ask a court for this remedy when a client has been waiting too long for USCIS to make a decision.

Publication Date: 
July 27, 2016
This Practice Tip analyzes the pros and cons of appealing to the Administrative Appeals Office (AAO) following the denial of an employment-based visa petition.
Publication Date: 
May 25, 2016
This Practice Tip explains how practitioners can turn a Request for Evidence (RFE) into an opportunity to strengthen the administrative record through a thoughtful and thorough response.
Publication Date: 
April 1, 2016
This Practice Tip outlines how you can build a strong administrative record to set the stage for challenging the denial of a client's visa petition in federal court.
Publication Date: 
December 1, 2015
The immigration courts’ unprecedented backlogs are creating procedural and substantive challenges for attorneys trying to comply with the One-Year Filing Deadline (OYFD) in asylum cases. This Practice Advisory discusses strategies and procedures for complying with the OYFD.
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.
Publication Date: 
October 22, 2015
This Practice Advisory focuses on the meaning of “admission” in four very specific, but frequently encountered situations: a “wave-through” at a port of entry; and entry based on misrepresentation; an entry based on a false claim to U.S. citizenship; and the grant of TPS as an admission for purposes of adjustment of status.
Publication Date: 
February 5, 2015
This Practice Advisory provides an overview of the CSPA, its effective date, and its interpretation and implementation by USCIS, the U.S. Department of State, the Board of Immigration Appeals, and the courts.
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).
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.
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.

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.
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.
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.
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.
Publication Date: 
December 16, 2011
This Practice Advisory describes the Supreme Court’s decision in Judulang v. Holder, which rejected the BIA's "comparable grounds" test for § 212(c) relief, and offers strategies for lawful permanent residents and others who may be affected by it.
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.

Publication Date: 
March 31, 2010
There are two main situations where individuals who were ordered removed or deported in absentia can reopen their cases: (1) they did not receive notice of the hearing, and (2) they did not appear at their hearing because of exceptional circumstances. This Practice Advisory addresses the elements and requirements for an in absentia motion to reopen in both contexts.
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.
Publication Date: 
April 13, 2009
This Practice Advisory explains the federal rules authorizing electronic filing in federal court; describes how to file documents in federal court using the Electronic Case Files (CM/ECF) System; and outlines how to access electronic documents through Public Access to Court Electronic Records (PACER). The Advisory discusses restrictions on electronic access to court documents in immigration cases.
Publication Date: 
December 26, 2008

This Q&A informs lawyers about some of the most important aspects of the December 18, 2008 voluntary departure rules adopted by Executive Office for Immigration Review.

Publication Date: 
August 5, 2008
The Immigration and Nationality Act authorizes the courts of appeals to review “final” removal orders. This Practice Advisory addresses whether a removal decision issued by an Immigration Judge or the BIA is a “final” removal order for purposes of federal court review.
Publication Date: 
June 1, 2008

This Practice Advisory offers a short introduction to habeas corpus, addressing when and how a petitioner may file a petition for writ of habeas corpus in the immigration context.

Publication Date: 
April 5, 2006
This Practice Advisory discusses the changes that the REAL ID Act made to INA § 242(a)(2)(B) and outlines an analysis for whether §242(a)(2)(B) applies to a particular case. It also discusses federal court jurisdiction over discretionary decisions after the REAL ID Act in the removal and non-removal contexts. The government has asserted this jurisdictional bar in employment-based, family-based, and humaritarian-based immigration cases.
Publication Date: 
June 7, 2005
On May 11, 2005, the REAL ID Act was signed into law. This Act contains numerous provisions related to federal court review of immigration cases. This Practice Advisory discusses the provisions of the Act that pertain to judicial review of immigration decisions under the INA.
Publication Date: 
April 20, 2005
This Practice Advisory addresses situations in which a court might excuse a late-filed petition for review and discusses other administrative and federal court options for remedying the failure to timely file a petition for review. The Advisory also provides an overview of 28 U.S.C. § 1631, which authorizes courts to transfer a case to cure a lack of jurisdiction when an action is filed in the wrong federal court.

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