Litigation Issue Pages

These issue-specific webpages focus on topics being litigated in courts nationwide. The pages include case updates, decisions, analysis, and relevant resources, such as practice advisories and pleadings.

Arizona SB 1070 | "Arriving Aliens" and Adjustment of Status | Brand X in Immigration Cases | Challenging the Legality of Detention | Enforcement, Challenges Against CBP | Enforcement, Lawsuits | Enforcement, Detainers | FOIA | Ineffective Assistance of Counsel | Mandamus | Motions to Suppress in Removal Proceedings | Naturalization Adjudication Delays | Noncitizens with Mental Competency Issues in Removal Proceedings | State and Local Law Enforcement

Archived Issue Pages: These issue pages are no longer updated. Each archived page provides the date on which it was last updated.

The following Litigation Issue Pages are listed in alphabetical order:

Arizona SB 1070‎, Legal Challenges and Economic Realities

Arizona’s harsh immigration enforcement law, "Support Our Law Enforcement and Safe Neighborhoods Act" (SB 1070, amended by HB 2162) inter alia, requires state and local law enforcement agencies to check the immigration status of individuals it encounters and makes it a state crime to be without proper immigration documentation. Soon after Arizona’s governor signed the bill, challenges to the law were filed. This page highlights the suits challenging the Arizona law.

"Arriving Aliens" and Adjustment of Status

Interim regulations published in 2006 removed the provision barring "arriving aliens" in removal proceedings from adjusting status. Under the interim rule, USCIS has jurisdiction to adjudicate the adjustment application. This Litigation Issue Page discusses the litigation stemming from the interim regulation and other administrative developments related to "arriving aliens" and adjustment of status.

Brand X in Immigration Cases

The Supreme Court's Brand X decision allows agencies to offer an interpretation of a statute that differs from a published circuit court decision. An agency may do so, however, only where the underlying statute is ambiguous. This Litigation Issue Page provides an overview of the Supreme Court's holding and identifies circuit court immigration decisions that have applied Brand X and immigration agency decisions that have addressed Brand X.

Detention, Challenging the Legality of Detention

This litigation issue page focuses on four areas of detention litigation: 1)  Challenging Matter of Rojas: does mandatory detention apply if ICE does not take custody “when the alien is released” from criminal custody; 2) Matter of Garcia-Arreola: the BIA’s 2010 decision overturning Matter of Saysana, and holding that mandatory detention does not apply where the release from incarceration is unrelated to the ground that triggered mandatory detention; 3) Challenging prolonged mandatory detention pending a final decision on removal; 4) Post order prolonged mandatory detention for individuals deemed “specially dangerous.”

Enforcement, Challenges Against CBP

With over 58,000 employees, U.S. Customs and Border Protection, the largest law enforcement agency in the United States, has significantly expanded its immigration-related activities since 2009.  Credible reports of abuses by Border Patrol agents and other CBP officers have fostered increased litigation in recent years.  This Litigation Issue Page highlights challenges to CBP misconduct and related FOIA lawsuits.

Enforcement, Detainers

Under 8 CFR. § 287.7, an “authorized immigration officer” may issue Form I-247, Immigration Detainer – Notice of Action, to a law enforcement agency (LEA) that has custody of an alleged noncitizen. A detainer is a request that an LEA notify ICE prior to releasing the individual so that ICE may make arrangements to assume custody within 48 hours after the person would otherwise have been released.

Enforcement, Lawsuits

ICE has expanded its enforcement activities, resulting in many highly publicized and criticized enforcement actions at workplaces and in homes and local communities. ICE also is employing local and state officers in some of these actions. This Litigation Issue Page highlights litigation challenging the legality of enforcement activities.

Freedom of Information Act

This Litigation Issue Page summarizes and discusses recent developments in immigration-related FOIA lawsuits. The page also provides information about attorneys' fees, non-litigation related FOIA developments, and links to FOIA resources.

Ineffective Assistance of Counsel

This Litigation Issue Page provides information related to Matter of Compean I and II, the Attorney General decisions regarding seeking a remedy for ineffective assistance of counsel in removal proceedings. In the first Compean decision, former AG Mukasey said that there is no constitutional or statutory right to a remedy for ineffective assistance of counsel, but that immigration judges have discretion to reopen cases where counsel’s “deficient performance” prejudiced the client. That decision subsequently was vacated by AG Holder.

Mandamus

This Litigation Issue Page provides information about developments in immigration-related mandamus actions, with particular emphasis on cases seeking to compel the adjudication of applications that are delayed because of security checks.

Motions to Suppress in Removal Proceedings

This page contains IJ and BIA decisions on motions to suppress. In each of these cases, the respondents in removal proceedings asked the IJ to suppress the government’s evidence. These decisions are not meant to be representative of the way in which the agency is deciding these motions, but they do illustrate how individual IJs and BIA panels have analyzed the issues.

Naturalization Adjudication Delays

USCIS' delays in adjudicating naturalization applications are forcing applicants to seek judicial remedies. Section 336(b) of the INA provides for judicial review for a stalled naturalization petition if the application is pending for more than 120 days after the date of the examination. Many litigants seek relief under the mandamus statute and the Administrative Procedure Act, in addition to or instead of INA § 336(b).

Noncitizens with Mental Competency Issues in Removal Proceedings

In contrast to the criminal system, virtually no safeguards exist in removal proceedings for respondents with mental disabilities. Each year, untold numbers of noncitizens with mental disabilities are ordered deported without access to counsel or any assessment of their cognitive capabilities. The issue has taken on greater urgency following extensive reports of the challenges that immigrants with mental disabilities face in removal proceedings, as well as alarming accounts of the mistaken deportation of U.S. citizens with mental disabilities. This page contains summaries of recent and ongoing cases regarding noncitizens with mental disabilities.

State and Local Law Enforcement

An increasing number of states and local governments have enacted laws targeting noncitizens. This Litigation Issue Page highlights suits challenging these state and local law enforcement efforts.