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.

Other Impact Litigation

This Litigation Issue Page summarizes and discusses class action and other multi-party lawsuits that do not fall into categories covered by the Litigation Issue Pages described below.

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 Treatment in Detention

This Litigation Issue Page summarizes and discusses class action, multi-party, and other impact suits that challenge the conditions and treatment of noncitizens in detention.

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.”

Employment Authorization Verification

This Litigation Issue Page highlights lawsuits challenging government initiatives related to employment verification, including the Internet based E-Verify system and "no-match" letters issued by the Social Security Administration.

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.

Enforcement, Motions to Suppress

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.

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.

H-1B/Neufeld Memo on Employer-Employee Relationship

On January 8, 2010, USCIS’s Associate Director Donald Neufeld issued a memo providing guidance, in the H-1B context, on determining employer-employee relationships. The memo adds requirements for H-1B petitions that are not covered by the H-1B regulations. Specifically, the memo precludes employers from placing H-1B workers at client worksites in many situations and bars many employer-owned businesses from filing an H-1B petition. This Litigation Issue Page highlights legal challenges to the memo and provides information about other advocacy efforts to change USCIS policy.

IJ's Jurisdiction to Apply INA § 204(j)

In Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), the BIA held that immigration judges lack jurisdiction to determine whether an approved I-140 remains valid under INA § 204(j). Section 204(j) provides that, for purposes of an adjustment application that has been pending for more than 180 days, an approved I-140 visa petition remains valid even if the adjustment applicant changes jobs, so long as the new job is in the same or similar occupational classification. Several courts of appeals rejected the BIA’s holding, and in January 2010, the BIA reversed itself in Matter of Neto, 25 I&N Dec. 169 (BIA 2010).

Ineffective Assistance of Counsel

This Litigation Issue Page provides information related to Matter of Compean, the Attorney General's decision overturning Matter of Lozada. In Matter of Compean, the AG says 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.

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.

Matter of Blake

In Matter of Blake, 23 I&N Dec. 722 (BIA 2005), the BIA ruled that a person found removable based on an aggravated felony conviction (sexual abuse of a minor) was not eligible for a 212(c) waiver because there was no statutory counterpart in the grounds of inadmissibility. Nearly all the circuits have considered challenges to Matter of Blake, and all but the Second Circuit have upheld the BIA's decision.

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).

Orozco: Adjustment of Status When Admission Involved Fraud or Misrepresentation

In Orozco v. Mukasey, the Ninth Circuit held that a non-citizen who obtains entry into the U.S. by fraudulent means is statutorily ineligible for adjustment of status under INA § 245(a) because he or she has not been “admitted.” Subsequently, the Ninth Circuit vacated its decision. However, the issues involved in this case still have not been resolved definitively by the BIA.

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.