Practice Advisories by Topic

LAC Practice Advisories provide in depth discussion and analysis of select substantive and procedural issues in immigration law. The Practice Advisories are intended to assist lawyers and do not substitute for individual legal advice supplied by a lawyer familiar with a client's case. View advisories by date [1].

Administrative Appeals Office (AAO)

Failure to Appeal to the AAO: Does it Bar all Federal Court Review of the Case? [2] (July 22, 2004). 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.

BIA & Immigration Court Procedures

Employment Authorization and Asylum: Strategies to Avoid Stopping the Asylum Clock [3] (February 5, 2014). This Practice Advisory provides an overview of the work authorization process for asylum applicants, addresses the operation of the “asylum clock,” which is used to track the 180-day waiting period during which an applicant cannot apply for work authorization, and discusses possible solutions to several common asylum clock problems.

Dent v. Holder and Strategies for Obtaining Documents from the Government During Removal Proceedings [4]
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.

Representing Clients with Mental Competency Issues under Matter of M-A-M- [5] (November 30, 2011). This Practice Advisory provides a detailed analysis of the BIA's precedent decision in Matter of M-A-M- and offers strategic advice on how to address issues that may arise in the context of representing noncitizens with mental competency issues.

EOIR Background and Security Check Regulations [6] (April 6, 2005). On April 1, 2005, EOIR’s Background and Security Check regulations went into effect. The interim rule bars IJs and the BIA from granting most forms of relief until DHS has informed them that security checks are completed. This Practice Advisory provides basic information about the requirements and procedures under the interim rule and highlights the major changes to BIA procedures.

Objecting to Video Merits Hearings [7] (December 12, 2003). This Practice Advisory discusses the problems arising from the use of video hearings in immigration cases, particularly those in which the respondent’s credibility is at issue. The Advisory highlights ways to protect the respondent’s rights and move for in-person hearings where that strategy is beneficial.

Practicing Before the BIA Under the "Procedural Reforms" Rule [8] (January 10, 2003). The BIA’s “procedural reforms” rule went into effect on September 25, 2002. Notably, under the new rule, most cases are decided by a single member of the BIA, as opposed to a three-member panel. This Practice Advisory highlights the changes made by this rule, including changes to summary dismissals, adjudication on the merits, briefing schedules, standards of review, evidence on appeal, timeframes for adjudications, and board membership.

Affirmance Without Opinion

BIA "Affirmance Without Opinion": What Federal Court Challenges Remain? [9] (April 27, 2005). This Practice Advisory discusses the types of Affirmance Without Option (AWO) challenges that have failed and those that remain available. The advisory also includes a chart identifying the primary cases in each circuit and how they have decided various AWO issues.

How to Challenge an Affirmance Without Opinion by a BIA Member [10] (September 27, 2002). Pursuant to 8 C.F.R. § 3.1(e)(4), single BIA members are deciding summarily thousands of cases using the “affirmance without opinion” (AWO) procedure. This Practice Advisory discusses arguments that challenge a BIA Member’s use of this procedure to deny an appeal.

Business Immigration

Export Licensing Requirements for Foreign Nationals [11] (July 17, 2003). This Practice Advisory focuses on the “deemed export” rule under the Commerce Department’s Export Administration Regulations (“EAR”), which governs exports of non-military technology.

Detention

Introduction to Habeas Corpus [12] (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.

ICE's Detention after Removal Hearing Program Practical Suggestions and Legal Analysis for Potential Challenges [13] (April 9, 2004). This Practice Advisory provides suggestions for lawyers with clients subject to the ICE’s Detention After Removal Hearing Program (DARH), outlines statutes and regulations governing the detention of respondents subject to DARH, and sets out potential legal challenges.

Enforcement

Motions to Suppress in Removal Proceedings: Fighting Back Against Unlawful Conduct by U.S. Customs and Border Protection [14] (November 13, 2013): This practice advisory addresses some of the factual scenarios and legal issues that may arise when seeking to suppress evidence unlawfully obtained at or near the border. This practice advisory supplements a prior LAC practice advisory, Motions to Suppress in Removal Proceedings: A General Overview, which has been updated to address certain strategic considerations concerning motions to suppress, including the advisability and timing of filing a concurrent request for prosecutorial discretion or a lawsuit for damages.

Motions to Suppress in Removal Proceedings: A General Overview [15] (updated November 12, 2013). 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.

Advance Parole for Deferred Action for Childhood Arrivals (DACA) Recipients [16] (August 28, 2013). This practice advisory provides guidance on advance parole eligibility for DACA recipients; outlines how a DACA recipient may apply for advance parole; addresses the legal issues that can confront a DACA recipient considering travel on advance parole, including any potential risks; and finally, covers the impact that the travel may have on the DACA recipient’s future immigration benefits.

Motions to Suppress in Removal Proceedings: Cracking Down on Fourth Amendment Violations by State and Local Law Enforcement Officers [17] (updated August 15, 2013). This practice advisory deals primarily with Fourth Amendment limitations on state and local immigration enforcement efforts and also briefly addresses Fifth Amendment violations that may arise from the same types of encounters with state and local officers. It also discusses some of the legal issues that may arise when noncitizens in removal proceedings move to suppress evidence obtained as a result of a constitutional violation by such officers.

Reinstatement of Removal [18] (updated April 29, 2013). A person who has been removed and unlawfully reenters the United States may be subject to reinstatement of removal under INA § 241(a)(5). This Practice Advisory provides an overview of the reinstatement statute and implementing regulations. It also addresses where to obtain federal court review of reinstatement orders and which arguments are available to challenge the legality of reinstatement orders in federal court, including challenges to the underlying removal order.

Deferred Action for Childhood Arrivals [19] (updated April 22, 2013). This Practice Advisory incorporates recent DHS guidance regarding fraudulent Social Security numbers, required evidence, and travel considerations for individuals who are requesting Deferred Action for Childhood Arrivals (DACA). It also offers strategic advice for attorneys representing individuals who may qualify for DACA. The LAC issued this advisory jointly with the American Immigration Lawyers Association and the National Immigration Project of the National Lawyers Guild.

"Brief, Casual and Innocent" Absences from the United States [20] (January 29, 2013). This practice advisory discusses the “brief, casual and innocent” standard under existing case law. Though such case law may inform USCIS’s review of absences from the United States, DACA adjudicators are not bound by these decisions. Courts have often adopted generous interpretations of the “brief, casual and innocent” standard, and it is hoped that USCIS will do the same in the DACA context.

Inspection and Entry at a Port of Entry: When is there an Admission? [21] (January 29, 2013). This practice advisory discusses entries in three common situations: where a noncitizen is “waved” through a port of entry with no questions asked; where entry is gained by fraud or misrepresentation; and where there is a false claim to U.S. citizenship. With respect to each situation, the practice advisory explores whether an “admission” has occurred, the individual’s immigration status upon entry, and the immigration consequences of the action. It also discusses the impact of these three types of entries on a DACA application.

Challenging Matter of E-R-M-F- & A-S-M-: Warrantless Arrests and the Timing of Right to Counsel Advisals [22] [23](November 2, 2012). This LAC’s practice advisory suggests strategies for opposing the BIA’s reading of 8 CFR 287.3(c) in E-R-M-F- and suppressing evidence obtained in violation of the regulation.

DHS Review of Low Priority Cases for Prosecutorial Discretion [24] (February 13, 2012). This Practice Advisory addresses the implementation of DHS’s prosecutorial discretion guidelines and provides detail about how DHS’s new joint working group will determine low priority immigration cases.

Prosecutorial Discretion: How to Advocate for Your Client [25] (updated June 24, 2011). This Practice Advisory explains what prosecutorial discretion is, who has authority to exercise it, and how it is exercised most often in immigration cases. It also suggests ways that attorneys can influence the favorable exercise of prosecutorial discretion by ICE and USCIS officers.

Federal Court Review

APA Actions

Immigration Lawsuits and the APA: The Basics of a District Court Action [26] (June 20, 2013). This Practice Advisory discusses the primary issues involved in a suit brought under the Administrative Procedure Act (APA) to challenge an unlawful agency action. The advisory provides examples of how these issues have been decided in immigration cases and arguments that can be made to meet the various procedural requirements for an APA action.

Attorneys Fees

Equal Access to Justice Act (EAJA) Fee Application [27] (December 15, 2008). This Practice Advisory addresses the deadline for filing an Equal Access to Justice Act (EAJA) fee application, the statutory requirements for eligibility, and procedural aspects of filing an application, including documenting and calculating fees.

Exhaustion of Administrative Remedies

Failure to Appeal to the AAO: Does it Bar all Federal Court Review of the Case? [28] (July 22, 2004). 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.

Habeas Petitions

The Criminal Justice Act: Appointment of Counsel in Habeas Corpus Proceedings [29] (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.

Introduction to Habeas Corpus [30] (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.

Jurisdiction

"Finality" of Removal Orders for Judicial Review Purposes [31] (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.

Federal Court Jurisdiction Over Discretionary Decisions After REAL ID: Mandamus, Other Affirmative Suits and Petitions for Review [32] (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.

Judicial Review Provisions of The REAL ID Act [33] (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.

Delay Litigation - Mandamus and 8 U.S.C. § 1447(b) Actions

Mandamus Litigation Against DOL to Address Delays in Prevailing Wage Determinations and Labor Certifications [34] (August 18, 2011). This Practice Advisory provides basic information about mandamus actions and suggests strategies and practice tips for bringing a mandamus action against the Department of Labor (DOL).

Mandamus Jurisdiction over Delayed Applications: Responding to the Government's Motion to Dismiss [35] (August 30, 2010). This Practice Advisory outlines arguments to make in response to the government’s arguments that the court should dismiss a mandamus or Administrative Procedure Act case brought to remedy the delayed adjudication of an immigration application.

How to get Judicial Relief Under 8 USC 1447(b) for a Stalled Naturalization Application [36] (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.

Mandamus Actions: Avoiding Dismissal and Proving the Case [37] (August 6, 2009). This Practice Advisory provides basic information about filing an immigration-related mandamus action in federal district court. It discusses the required elements of a successful mandamus action as well as jurisdictional concerns that may arise.

Petitions for Review and Other Procedural Matters

Return to the United States After Prevailing on a Petition for Review or Motion to Reopen or Reconsider [38] (Dec. 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.

Seeking a Judicial Stay of Removal in the Court of Appeals [39] (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.

The Fugitive Disentitlement Doctrine: FOIA and Petitions for Review [40] (updated April 29, 2013). The fugitive disentitlement doctrine 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.

Whom to Sue and Whom to Serve [41] (May 13, 2010). This Practice Advisory addresses who is the proper respondent-defendant and recipient for service of process in immigration-related litigation in district court. The advisory covers whom to sue in specific types of immigration-related actions, including mandamus, Federal Tort Claims Acts (and administrative claims), Bivens, and habeas actions.

How to File a Petition for Review [42] (February 28, 2011). 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.

Electronic Filing and Access to Electronic Federal Court Documents [43] (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.

"Finality" of Removal Orders for Judicial Review Purposes [44] (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.

How To File A Petition For Rehearing, Rehearing En Banc And Hearing En Banc In An Immigration Case [45] (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.

Suggested Strategies for Remedying Missed Petition for Review Deadlines or Filings in the Wrong Court [46] (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.

FOIA

The Fugitive Disentitlement Doctrine: FOIA and Petitions for Review [47] (August 19, 2010). The fugitive disentitlement doctrine 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.

Immigration Benefits

Immigration Benefits and Pitfalls for LGBT Families in a Post-DOMA World [48] (August 5, 2013). With the end of DOMA, married LGBT binational couples can access the panoply of marriage-based immigration benefits and forms of relief from removal. This practice advisory provides an overview of the agencies’ initial responses to Windsor and highlights some of the issues LGBT families will face in a post-DOMA world.

CSPA/Aging Out

The Child Status Protection Act [49] (June 20, 2013). This Practice Advisory provides a comprehensive overview of the CSPA and its effective date, with a discussion of the most recent agency interpretations and court cases.

Naturalization

How to get Judicial Relief Under 8 USC 1447(b) for a Stalled Naturalization Application [50] (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.

Religious Workers

Special Immigrant Religious Workers [51] (September 29, 2004). This practice advisory addresses the term “religious occupation,” as it is used with respect to certain categories of religious workers. It also addresses federal courts cases overturning AAO decisions that erroneously imposed heightened requirements for “religious occupation.”

Motions to Reopen

Departure Bar to Motions to Reopen and Reconsider: Legal Overview and Related Issues [52] (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.

Rescinding an In Absentia Order of Removal [53] (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.

Relief from Removal

Moncrieffe v. Holder: Implications for Drug Charges and Other Issues Involving the Categorical Approach [54] (March 2, 2013). In Moncrieffe, the Supreme Court held that a state drug conviction is not an aggravated felony when the statute of conviction extends to the social sharing of a small amount of marijuana. This practice advisory discusses the holding of the case, the decision’s potential broader implications, strategies for noncitizen criminal defendants, and steps that lawyers should take immediately in pending or already concluded removal proceedings affected by Moncrieffe.

Deferred Action For Certain Young People Who Came to the United States as Children [55] (June 28, 2012). This Practice Advisory provides an overview of DHS's June 15, 2012 announcement that it will grant deferred action for certain young people who came to the United States as children. It provides preliminary analysis and suggestions for attorneys representing individuals who may qualify for deferred action under this announcement.

Vartelas v. Holder: Implications for LPRs Who Take Brief Trips Abroad and Other Potential Favorable Impacts [56] (April 5, 2012). This Practice Advisory describes the Supreme Court's decision in Vartelas v. Holder, holding that the Fleuti doctrine still applies to lawful permanent residents (LPRs) with pre-IIRIRA convictions. This means that LPRs with convictions before April 1, 1997 who travel abroad do not, upon their return, face inadmissibility if their trip was brief, casual and innocent. The advisory offers strategies for LPRs who are affected by the decision and discusses some of the decision's other potential favorable impacts.

Implications of Judulang v. Holder for LPRs Seeking § 212(c) Relief and for Other Individuals Challenging Arbitrary Agency Policies [57] (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.

Rescinding an In Absentia Order of Removal [58] (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.

The § 237(a)(1)(H) Fraud Waiver [59] (June 24, 2009). This Practice Advisory discusses the § 237(a)(1)(H) waiver for fraud or misrepresentation at admission that would otherwise render deportable certain LPRs and Violence Against Women Act (VAWA) self-petitioners. The advisory addresses contexts in which the waiver is available, the statutory eligibility requirements, and the relief that results from a grant of the waiver.

§ 212(h) Eligibility: Case Law and Potential Arguments [60] (February 19, 2008). This Practice Advisory addresses statutory requirements for § 212(h) waivers; availability of § 212(h) waivers in removal proceedings for both LPRs and non-LPRs; and situations when a “stand-alone” § 212(h) waiver can, or arguably might, be filed. The advisory also discusses the regulation imposing a heightened hardship standard in cases involving violent or dangerous crimes.

212(c)-St. Cyr

St. Cyr Regulations and Strategies for Applicants Who Are Barred From Section 212(C) Relief Under The Regulations [61] (October 19, 2004). Pursuant to the Supreme Court’s decision INS v. St. Cyr, the Department of Justice (DOJ) published its final rule on procedures for applying for section 212(c) relief. This Practice Advisory summarizes the rule and describes who can apply for § 212(c) relief under the rule. In addition, it discusses strategies and arguments to assist individuals who are barred under the rule.

Adjustment of Status for "Arriving Aliens"

USCIS Adjustment of Status of "Arriving Aliens" with an Unexecuted Final Order of Removal [62] (November 6, 2008). This Practice Advisory explains why USCIS has jurisdiction over adjustment applications of an arriving alien parolee with an unexecuted final order of removal. It also outlines the arguments why such a parolee remains eligible for adjustment notwithstanding an unexecuted final order of removal. This Practice Advisory supplements an earlier practice advisory addressing the adjustment of paroled “arriving aliens” under the interim regulations adopted on May 12, 2006.

"Arriving Aliens" and Adjustment of Status: What is the Impact of the Government's Interim Rule of May 12, 2006? [63] (November 5, 2008). This Practice Advisory discusses the impact of an interim rule repealing two former regulations which barred all “arriving aliens” from adjusting status if they are in removal proceedings. This advisory provides a brief history leading to the rule, defines key terms, discusses the impact of the rule, and suggests steps that a parolee can take to benefit from the rule.

Voluntary Departure

Voluntary Departure: Automatic Termination and the Harsh Consequences of Failing to Depart [64] (July 6, 2009). This Practice Advisory addresses when the voluntary departure period runs and the events that cause automatic termination of a voluntary departure order. The advisory also discusses the serious consequences that result from failing to depart, when these consequences apply, and importantly, when they do not apply.

Voluntary Departure Q&A [65] (December 22, 2008). This Q&A provides an overview of EOIR’s regulations on voluntary departure, issued December 18, 2008. The regulations, which went into effect on January 20, 2009, address various aspects of voluntary departure, including what happens to voluntary departure when motions to reopen and reconsider and petitions for review are filed.

Dada v. Mukasey Q&A: Preliminary Analysis and Approaches to Consider [66] (June 17, 2008). In Dada v. Mukasey, the Supreme Court protected the right to file a motion to reopen by holding that voluntary departure recipients are permitted to unilaterally withdraw their voluntary departure request before the expiration of the voluntary departure period. This Q&A offers preliminary analysis about the potential impact of Dada v. Mukasey on individuals’ cases and offers suggestions about immediate steps to take.