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What are ICE detainers, how do they affect a criminal case, and how can counsel get rid of them?  This advisory walks through all the legal and practices issues around ICE detainers, including the role of ICE in issuing them and the role of local or state jailors in responding.  We discuss the importance of incorporating ICE detainers into pre-trial strategy, the legal and constitutional issues implicated by ICE detainers, and the various ways to challenge or rescind a detainer.  This advisory is national; it identifies various different state laws affecting ICE detainers. 

This practice advisory provides an overview of TPS and focuses on a framework for analysis for the firm resettlement  bar to eligibility. It  also discusses the impact of dual nationality on TPS applicants.

In certain immigration cases, you may want to submit a Freedom of Information Act (FOIA) request to the U.S. Department of State (DOS), such as to try to find information about previous visa applications and passport records. This Practice Advisory will go over the DOS FOIA process in detail and provide practice tips for obtaining personal records from them, including best practices.

This Chart summarizes the criminal record bars to many forms of relief, to provide a quick way to check whether your client is potentially eligible for relief. See also ILRC, Immigration Relief Toolkit (2018).

DHS issued new enforcement and prosecutorial discretion guidance on September 30, 2021.  This practice advisory from the ILRC, NIPNLG, and IDP provides criminal defense practitioners with an overview of the enforcement priorities and other key policy changes described in recent DHS and ICE memos, and discusses strategies to use these priorities to advocate for prosecutorial discretion.

With a few exceptions, immigration authorities must use the “categorical approach” to determine whether a criminal conviction triggers a ground of removal. Expert use of the categorical approach may be the most important defense strategy available to immigrants charged with or convicted of crimes. This Update of our long-running article includes discussion of Pereida v. Wilkinson, 141 S.Ct. 754 (2021).

There have been many recent developments regarding the litigation challenges to the Department of Homeland Security enforcement priorities. This brief guide provides a quick summary to help you keep up. In short, the Enforcement Priorities are currently still in effect, although a change could come within the next few weeks. Below you will additionally find the Fifth Circuit’s temporary stay of the lower federal district court’s preliminary injunction order. While these issues are quickly moving, this update is current as of September 2021.

The Liberian Refugee Immigration Fairness Act (LRIF) created a limited-term program allowing many Liberians living in the United States to apply for permanent residence. Initially, LRIF’s application period opened on December 20, 2019 and was set to expire on December 20, 2020. On January 3, 2021, however, Congress passed the Consolidated Appropriations Act 2021, extending the application period for LRIF for another year, until December 20, 2021.

A conviction of a crime involving moral turpitude (CIMT) may or may not hurt an immigrant, depending on a number of factors set out in the Immigration and Nationality Act:  the number of CIMT convictions, the potential and actual sentence, when the person committed or was convicted of the offense, and the person’s immigration situation. A single CIMT conviction might cause no damage, or it might cause a variety of penalties ranging from deportability to ineligibility for relief to mandatory detention.

ICE enforcement priorities have changed under the Biden administration, signaling a return to the use of prosecutorial discretion. On May 27, 2021, the ICE Principal Legal Advisor issued guidance for OPLA attorneys about how and when to exercise prosecutorial discretion during various stages of removal proceedings. EOIR subsequently issued its own memo discussing EOIR policies related to the enforcement priorities. Building upon our previous practice advisory, Advocating for Clients under the Biden Administration’s Interim Enforcement Priorities, this practice alert from ILRC and NIPNLG provides immigration practitioners with a summary of the OPLA and EOIR guidance, including key information, practice tips, and takeaways.

On January 1, 2021, multiple California criminal reform laws took effect. These laws were passed to help all defendants regardless of immigration status, but they can be of special help to noncitizens. Advocates should understand how these laws may help a client’s immigration case. They include: 

This page provides several tools: an updated and a comprehensive Practice Advisory on the legal issues; a Practice Alert on the Policy Manualamendment; community flyers that you can download and use to help warn clients and community; and a sample written warning about working in the industry from the California Employment Development Department.

The majority of states have legalized some use of marijuana, but marijuana remains a federal Schedule I controlled substance. Therefore, any conduct involving marijuana can be very dangerous for immigrants – including conduct that is permitted under state law. Admitting that one has “legally” used marijuana, being employed in the fast-growing cannabis industry, and any conviction can cause serious immigration problems. A prior marijuana conviction must be vacated based on some error; the fact that the state has since legalized the conduct does not erase it, and many state “mass expungement” actions also do not. Evidence that a person has sold marijuana can harm any noncitizen, in some cases including immigrant youth. Marijuana issues can cause bars to eligibility for affirmative applications such as adjustment of status and naturalization; admission at the border; and cancellation and other applications in removal proceedings. 

The Liberian Refugee Immigration Fairness (LRIF) Strategy Group submitted these comments in connection with the U.S. Citizenship and Immigration Services’ (USCIS) Request for Public Input published in the Federal Register on April 19, 2021. The Strategy Group is a focused coalition of local, state, and national-level organizations that provide direct legal and other community-based services to Liberians in the United States and includes experts in USCIS operations and implementation issues and Liberian cultural competency.

In Pereida v. Wilkinson, 141 S.Ct. 754 (March 4, 2021), the Supreme Court issued another opinion on the categorical approach, which is the analysis authorities use to decide whether a criminal conviction triggers removal grounds.  Pereida focuses on the “modified” categorical approach, which is how courts approach a conviction under a statute that sets out multiple, separate, offenses (a “divisible” statute). Pereida overruled Marinelarena v. Barr, 930 F.3d 1039 (9th Cir. 2019) (en banc).

The Liberian Refugee Immigration Fairness  Act (LRIF) created a limited-term program allowing many Liberians living in the United States to apply for permanent residence. Initially, LRIF’s application period opened on December 20, 2019 and was set to expire on December 20, 2020. On January 3, 2021, however, Congress passed the Consolidated Appropriations Act 2021, extending the application period for LRIF for another year, until December 20, 2021.

In the summer of 2020, the Department of Homeland Security (DHS) published two regulatory rules relating to eligibility for employment authorization documents (EADs) for individuals with pending asylum applications. Both rules went into effect in August 2020. This advisory provides a summary of the rules and the preliminary injunction currently in effect for members of Casa de Maryland (CASA) and Asylum Seeker Advocacy Project (ASAP). The end of this advisory contains a helpful chart for quick reference, outlining current eligibility requirements for an EAD based on a pending asylum application, and which provisions are temporarily enjoined by the case Casa de Maryland v. Wolf, No. 8:20-CV-02118-PX, 2020 WL 5500165 (D. Md. Sept. 11, 2020), for certain organizational members.

This practice advisory from the ILRC, NIPNLG, and IDP advises criminal defense attorneys on new immigration enforcement policies and how to use the new guidance to defend clients in criminal proceedings.

On March 16, 2021, ILRC and seven other coalition members of the Liberian Refugee Immigration Fairness (LRIF) Strategy Group submitted recommendations to the Administration and USCIS leadership for equitable implementation of LRIF. The group requested a meeting with the government to discuss these recommendations.

ICE enforcement policies have changed under the Biden administration, and opened new opportunities to defend your clients from arrest, detention, and deportation.  This practice advisory from the ILRC, NIPNLG, and IDP provides immigration practitioners with an overview of the interim enforcement priorities and other key policy changes described in recent DHS and ICE memos, and discusses strategies to use these priorities to advocate for prosecutorial discretion.

The Biden administration announced the designation of Venezuela for TPS, effective March 9, 2021 through September 9, 2022. TPS provides protection from removal, work authorization, and the option to request permission to travel abroad. The 180-day registration period is currently open through September 5, 2021. This advisory provides an overview of the requirements and application process for TPS for Venezuela. It also includes a brief summary of Deferred Enforced Departure (DED) for Venezuela which is also currently in effect through July 20, 2022.

The Trafficking Victims Protection Reauthorization Act of 2008 confers initial jurisdiction over asylum claims filed by unaccompanied children (UCs) to the asylum office. The Board of Immigration Appeals’ decision in Matter of M-A-C-O-, as well as policy changes by the Trump administration have sought to strip away this crucial protection from many child asylum seekers. Because of these changes and legal challenges by immigrant youth advocates, the current landscape of initial UC asylum jurisdiction is in flux. This practice advisory provides an overview of the current state of UC asylum jurisdiction following the Matter of M-A-C-O- decision and issuance of the Lafferty Memo. It also discusses the ongoing JOP v. DHS litigation and gives some arguments and tips for practitioners to help them advocate for their UC clients to receive the statutory protections afforded by the TVPRA. 

Enacted on December 20, 2019, the Liberian Refugee Immigration Fairness (LIRF) act began a program that will allow many Liberians living in the United States to apply for permanent residence. The statute originally had a one-year application window that ended on December 20, 2020, but Congress extended the application period another year to December 20, 2021 in the Consolidated Appropriations Act, 2021.

On December 22, 2020, the ILRC submitted comments in opposition to EOIR’s notice of proposed rulemaking regarding what constitutes “good cause” for a continuance in removal proceedings. The proposed changes severely restrict the circumstances in which respondents can obtain continuances in removal proceedings, as well as the number and length of continuances. These changes will have a devastating impact on respondents’ due process rights, essentially eliminate protections from removal for VAWA and U-visa petitioners, further interfere with the independence of immigration judges, and curtail administrative efficiency.

Cancellation of removal under INA § 240A(a) is an important defense for lawful permanent residents who have become removable, due to criminal record or other reasons. The requirements for statutory eligibility are complex, and it is critical for advocates to understand the risks and strategies that arise from the Supreme Court’s decision on the “stop-time” rule, Barton v. Barr, --U.S.--, 140 S.Ct. 1442 (2020). This Advisory is an updated step-by-step guide to eligibility, potential arguments, and defense strategies for LPR cancellation.

Noncitizens with certain criminal records are subject to mandatory immigration detention under INA § 236(c), 8 USC § 1226(c). This means that they may remain detained during the weeks, months, or years of their entire immigration case, without even the right to a bond hearing. Recent Supreme Court decisions in Jennings v. Rodriguez and Nielsen v. Preap have made the situation even worse, although litigation has produced some protections. This advisory outlines how to identify whether your client may be subject to mandatory detention, and what immigration advocates and criminal defense counsel can do to help their clients to avoid it.

In some cases, the amount of an imposed, potential, or served criminal sentence can determine the outcome of the immigration case. The law governing how state sentencing dispositions affect immigration penalties is fast-changing. The good news is that an informed defender often can structure a sentence that gives the prosecution what they require, while avoiding immigration penalties. An informed immigration advocate wants to be able to explain this to an immigration judge or adjudicator to win the case.

On October 30, 2020, ILRC filed a comment opposing an EOIR proposed rule that would have a substantial negative impact on legal orientation programs operated by non-profit immigration legal services programs.

On June 30, 2020, the Third Country Asylum Rule, or asylum transit ban, was found unlawful and struck down nationwide in CAIR Coalition v. Trump. This advisory discusses the asylum transit ban, the CAIR Coalition decision, and possible strategies for people who have been denied under the ban to reopen their cases and receive asylum.