4-7.010
Immigration Litigation—Generally
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The Office of Immigration Litigation litigates in the federal district
courts and circuit courts of appeals on behalf of the Immigration and
Naturalization Service, the Department of State, the Department of Labor,
and all other agencies involved in the regulation of aliens seeking to enter
or remain in the United States. Additionally, the Office is responsible for
litigation involving citizenship and passport matters, as well as the
employer sanctions/employment authorization provisions of the Immigration
Reform and Control Act of 1986 (Pub.L. No. 99-603, 100 Stat. 3359), as
amended.
Immigration litigation may be either defensive or affirmative in
character. No affirmative civil immigration suit should be instituted by
the USA without prior consultation with the Office of Immigration
Litigation. Copies of all immigration-related complaints and other
pleadings served upon the USA should be promptly forwarded to the Office,
including petitions by aliens for habeas corpus. Similarly, the Office
shall endeavor to provide prompt notification to USAs of significant
developments concerning aliens involved in federal court litigation in their
districts. Certified records of proceedings before immigration judges are
prepared by the Executive Office of Immigration Review; requests for such
records should be made through the Office of Immigration Litigation.
For alien-related litigation, the principal governing statute is the
Immigration and Naturalization Act of 1952, as amended, 8 U.S.C.
§§ 1101, et seq., which establishes critical distinctions
between aliens based upon their status as immigrants or nonimmigrants, and,
until 1996, based upon whether the individual in question has "entered" the
United States (a legal fiction which resulted in separate avenues of
deportation and exclusion for the expulsion of aliens lacking authority to
enter/remain in the United States). Under recent reforms, "admission" has
replaced "entry" as the pertinent inquiry. Special statutory provisions
limit the courts' jurisdiction to review immigration disputes. E.g.,
8 U.S.C. § 1105a, replaced by 8 U.S.C. 1252, as amended. The
Immigration and Nationality Act was significantly rewritten by the
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.
104-828, 110 Stat. 3009, much of which became effective April 1, 1997.
Contact: Thomas W. Hussey, (202-616-4852), Director.
Deputy Directors: Donald E. Keener, (202-616-4878); David J. Kline,
(202-616-4856), David M. McConnell (202-616-4881).
Mail:
Office of Immigration Litigation
Civil Division
U.S.
Department of Justice
P.O. Box 878, Ben Franklin Station
Washington,
D.C. 20044
Delivery:
Suite 7025S, National Place
1331 Pennsylvania Avenue,
N.W.
Washington, D.C. 20004
[updated May 2003]
4-7.100
Reporting of Decisions
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The outcomes of all civil proceedings arising under the immigration and
nationality laws (including the disposition of habeas corpus petitions by
aliens) should be reported to the Office of Immigration Litigation. In all
cases in which the decision is adverse to the government, copies of the
pleadings and other documents, except insofar as previously supplied to the
Office, should be promptly submitted along with an appeal recommendation.
See USAM Title 2, Appeals.
USAs should promptly advise the appropriate District Directors of the
Immigration and Naturalization Service of all decisions and interlocutory
orders in litigation to which the Service is a party. Such notification
should be particularly prompt in the case of an adverse decision or
interlocutory rulings in which an appeal, rehearing en banc or certiorari
might be taken or sought. Timely notification will enable the General
Counsel to formulate the Service's recommendation to the Department with
respect to any further action which might be taken in the litigation.
Similarly, prompt notification should be given to appropriate officials
of the Departments of Labor and State of decisions or rulings in immigration
and nationality cases whenever either Department is a party to the action.
4-7.200
Revocation of Naturalization
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No suit shall be instituted by the USA to revoke naturalization under 8
U.S.C. § 1451 without prior consultation with the Office of Immigration
Litigation. Notwithstanding that under 8 U.S.C. § 1421(b) jurisdiction
also lies in various courts of the states, all such actions shall be filed
in the federal district courts. There is no objection to the payment of the
expenses of filing in state courts certified copies of judgments in
accordance with 8 U.S.C. § 1451(f).
In all cases involving the revocation of naturalization, service may be
had upon absentees from the United States or the judicial district in which
the defendant last had his/her residence by publication or by any other
method permitted by the laws of the state or place where the suit is
brought. If the state statute permits service upon absentees by registered
mail only, no publication is necessary. If service can only be effected by
publication, publication must be in strict compliance with the state
statute.
Title 8 U.S.C. § 1451(f) provides that a person holding a
certificate of naturalization or citizenship which has been canceled under
the provision of that section shall, upon proper notice, surrender the
certificate to the Attorney General. All complaints for revocation of
naturalization filed pursuant to Section 1451 should contain a demand that
the certificate of naturalization be surrendered to the USA, and all
proposed orders to be signed by the court in such cases should provide for
surrender of the certificate of naturalization to the USA.
Upon receipt of the certificate, the USA should forward it to the
District Director, Immigration and Naturalization Service, who has
jurisdiction over the area in which the certificate is surrendered.
In proceedings under 8 U.S.C. § 1451(d) that involve persons who are
outside of the United States, the United States consular officer in the
area, as the representative of the Attorney General, will demand surrender
of the certificate.
4-7.300
Plea Agreements Involving Deportation, Exclusion or Removal
U.S Attorneys should also be cognizant of the sensitive areas where plea
agreements involve the deportation, exclusion or removal of aliens. The
regulation at 28 C.F.R. § 0.197 provides that:
The Immigration and Naturalization Service (Service) shall not be bound,
in the exercise of its authority under the immigration laws, through plea
agreements, or other agreements with or for the benefit of alien defendants,
witnesses, or informants, or other aliens cooperating with the United States
Government, except by the authorization of the Commissioner of the Service
or the Commissioner's delegate. Both the agreement itself and authorization
must be in writing to be effective, and the authorization shall be attached
to the agreement.
Notification should also be provided to the Office of Immigration
Litigation.
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