Results

Part 2 of this 2-part advisory explores some of the unexpected consequences of PD policies adopted by the ICE Office of the Principal Legal Advisor (OPLA) that can prejudice noncitizens in removal proceedings, including the practice of moving to dismiss proceedings over respondents’ objections and failing to appear at hearings.

Part 1 of this 2-part advisory provides updates on DHS’s prosecutorial discretion in removal proceedings and explores the various factors that advocates should consider when deciding whether to seek a favorable exercise of discretion from the ICE Office of the Principal Legal Advisor (OPLA). Part 1 also highlights new regulations and discusses how the upcoming presidential election may impact prosecutorial discretion.

On June 6, 2024, the ILRC submitted a comment in support of DHS’s temporary final rule (TFR) providing automatic extensions of employment authorization documents. The TFR specifically requested comment on whether the measure should be permanent and how long permanent automatic extensions should be. The ILRC wrote in support of a long and permanent auto-extension policy to ensure that applicants are not harmed by administrative delays that lead to lapses in document validity.

On July 8, the ILRC submitted a comment opposing the Biden administration’s interim final rule (IFR) entitled “Securing the Border.” The IFR unlawfully restricts asylum access by restricting entry and creating a bar to asylum eligibility when there have been a certain number of encounters at the southern U.S. border.

On June 12, the ILRC submitted a comment opposing the Biden administration’s proposed rule that seeks to apply certain mandatory bars to asylum at the fear screening stage. The proposed rule contradicts the administration’s previous finding that such a policy would be inconsistent with statutory intent. It would also deprive asylum seekers of an opportunity to access asylum procedures by adding legally complex bars to the threshold screening for eligibility.

On February 14, 2024, President Biden announced an 18-month Program of deferred enforced departure (DED) for Palestinians in the United States. This alert describes the content of the executive order. Eligible persons may apply for employment and travel authorization under the program when a notice is published in the Federal Register.

On Feb. 20, 2024, the ILRC sent a letter to DHS Secretary Alejandro Mayorkas and Attorney General Merrick Garland urging the release of regulations in 2024. The purpose of the letter is to encourage the Biden Administration to publish regulations regardless of the political concerns of the upcoming election year. The ILRC focused on the release of some proposed regulations that have been scheduled for publication, and also urged the administration to rescind and replace asylum regulations leftover from the previous administration, and also to refrain from publishing additional regulations that restrict asylum at the southern border.

This advisory analyzes and explains the particularly serious crime bar to asylum and withholding of removal. It describes the factors to consider in determining whether a crime is a "particularly serious crime" and how to challenge a particularly serious crime determination.

Protection under the Convention Against Torture (CAT) is an important relief option for individuals who are unable to qualify for asylum or withholding of removal. This advisory reviews the legal standard for CAT protection. It also provides an overview of seminal Board of Immigration Appeals and federal circuit court decisions that discuss the various elements of a CAT claim. The end of the advisory contains a useful chart which compares asylum, withholding of removal, and CAT.

On May 11, 2023, the Biden administration issued a new regulation creating a bar to asylum for people arriving at the southern U.S. border with certain narrow exceptions. Although there is an ongoing court challenge, the bar, known as the “lawful pathways” rule, remains in effect. This Community Alert explores the exceptions to the bar with a focus on some of the exceptions that apply to children and youth traveling with their families.

On August 1, 2023, USCIS published long-awaited Policy Manual guidance on the definition and process for determining statelessness. ILRC commented favorably on most of the guidance and made suggestions for some improvements.

Immigration law demonizes people whom it labels as “drug abusers and addicts,” “habitual drunkards,” and “alcoholics.” The implication is that they are morally weak, dangerous, or evil. An immigrant who comes within such a category can be found inadmissible and ineligible to establish good moral character, and can be denied several forms of immigration relief as well as naturalization. But from a scientific perspective, these people suffer from a substance use disorder (SUD), a medical condition that frequently arises after the person has undergone severe trauma. Substance Use Disorder is a growing health crisis that currently affects over 20 million people in the United States.

This Advisory is written by immigration attorneys and medical doctors specializing in SUD, to examine the issue from both perspectives. Part I of the advisory discusses the several immigration law penalties based on substance use (even when use has not risen to a disorder) and suggests legal defense strategies. Part II of the advisory reviews current medical information about the disorders and discusses how this information can address questions that arise in immigration proceedings.

This is the second part of a two-part practice advisory on how to effectively challenge an immigration judge's adverse credibility finding with the Board of Immigration Appeals. The two advisories should be read together, as neither part is complete on its own. This second part of the advisory discusses how to challenge adverse credibility findings based on a witness's demeanor or responsiveness; findings that are based on an immigration judge's speculation and conjecture, particularly regarding the plausibility of a claim; and determinations regarding a respondent’s corroborative evidence. It also flags special circumstances to look out for when appealing an immigration judge's adverse credibility finding.

This practice advisory provides an overview of the different ways crimes can impact eligibility for Temporary Protected Status (TPS) and a framework for analyzing whether an applicant is subject to these bars and potential options to overcome them.

On March 27, 2023, the ILRC submitted comments on the Biden Administration’s proposed rule that would impose a rebuttable presumption against eligibility for asylum for those who transited through a third country before arriving in the United States. The ILRC detailed concerns with how this rule will essentially ban a large number of asylum-seekers from relief and how the rule impermissibly restricts the due process rights of asylum-seekers at the U.S.-Mexico border.

Federal Rulemaking is one of the most direct ways that the public can participate and shape policies and practices of executive agencies. Federal regulations govern the executive agencies charged with enforcing the United States’ immigration laws and granting immigration benefits to eligible applicants. However, the process of Federal Rulemaking is often misunderstood and public participation in the process is under-utilized. This practice advisory provides an overview of the federal regulatory and rulemaking process as well as the authorities that govern this process as well as a guide to commenting on proposed rules and practical tips for navigating the resources available to the public.