|4-7.100||Reporting of Decisions|
|4-7.200||Revocation of Naturalization|
4-7.010 - Immigration Litigation—Generally
The Office of Immigration Litigation (OIL) is organized into two sections – the District Court Section and the Appellate Section.
The Appellate Section defends petitions for review from the Executive Office for Immigration Review’s (EOIR) Board of Immigration Appeals’ final orders of removal before the federal appellate courts. Appellate attorneys handle removal cases in the Courts of Appeals at all stages, including panel rehearing and en banc rehearing, and support the Office of the Solicitor General’s immigration litigation efforts in the U.S. Supreme Court. The Section also provides support and counsel to all federal agencies involved in the admission, regulation, and removal of noncitizens under the United States’ immigration and nationality statutes, as well as related areas of border enforcement and national security. These cases comprise challenges related to whether an individual is subject to removal from the United States or is eligible for some form of relief or protection that would allow him or her to remain in the United States. The Section’s work covers a broad range of issues arising under the Immigration and Nationality Act, including principles of constitutional and administrative law, jurisdiction, immigration consequences of criminal convictions, admission and inadmissibility, asylum and border protection, and relief from removal. The Section also handles related litigation in the district courts whenever citizenship issues are transferred by appellate courts in accordance with the immigration statute’s judicial review rules, and detention challenges in district courts filed by individuals with pending circuit court review petitions. The caseload is almost entirely defensive and is directly tied to the enforcement efforts of the Department of Homeland Security (DHS) and the resulting removal adjudications by the Board of Immigration Appeals (Board). Certified records of proceedings before immigration judges are prepared by EOIR; requests for such records should be made through the Appellate Section.
The Appellate Section receives and defends thousands of cases each year. Most of the work of the Office involves defending decisions issued by adjudicators within EOIR or officials of DHS. When the Section’s attorneys are assigned cases in the federal courts, attorneys will consider whether there may be a reason to return or “remand” the case to the Board or, when appropriate (for reinstatement or other orders), to the relevant component of DHS.
Remand decisions are made on a case-by-case basis, following a review of the individual facts, circumstances, and procedural posture of a particular case. The decision to seek an order from a court to remand a case is within the discretion of the Director of the OIL Appellate Section and will rest on one or more of the reasons set forth on the list below. This list does not create or confer any rights or benefits that may be invoked or relied upon by any individual or party in litigation with the United States or against any government agency or officer:
- The agency decision under review contains a material error of law.
- The agency decision contains a material factual error.
- The agency decision is contrary to circuit law.
- The administrative record demonstrates a material procedural error.
- There are material and unexplained discrepancies between the decisions of the immigration judge and the Board of Immigration Appeals.
- The agency decision lacks essential analysis (e.g., when the agency decision under review fails to make a determination required by law or fails to address a claim properly raised or preserved).
- The agency decision cannot be sustained without the reviewing court invading the discretion or adjudicatory authority of the agency (i.e., when the reviewing court cannot decide the matter without violating the principles set forth in SEC v. Chenery, 332 US 194 (1947), or INS v. Ventura, 537 U.S. 12 (2002)).
- Circumstances outside the administrative record indicate that the record has become stale (i.e., where circumstances of the case have changed in a substantial and material way, such as when a court vacates a conviction for legal error, and that conviction formed the basis for the removal order or denial of benefits under review).
- Defense of the case would place significant agency policies or programs at substantial risk.
- There are circumstances indicating that the defense of the case would be patently inappropriate (e.g., cases in which an immigration judge arguably showed bias, hostility, or other inappropriate behavior that was not addressed and resolved by the Board, regardless of whether the claim was raised to the Board).
In addition to the foregoing reasons, OIL will consider remanding cases in order to facilitate exercises of prosecutorial discretion by DHS, or in other circumstances in which DHS believes that reopening of the case before the Board of Immigration Appeals is appropriate (e.g., cases in which a petitioner may have recently become eligible for adjustment of status or presents other equities such that DHS Immigration and Customs Enforcement would not oppose reopening by the Board).
The Appellate Section also provides advice and counsel to offices of the United States Attorneys (USAOs) prosecuting criminal immigration issues that overlap with the Section’s civil litigation, and coordinates on common issues to ensure that the Government’s position is consistent. AUSAs and state prosecutors who need assistance with regard to the potential immigration consequences of crimes should send an email to OIL.Criminal-ImmigrationTeam@usdoj.gov. The Section likewise provides significant guidance, support, and litigation assistance to USAOs on mandamus litigation seeking to compel government action and habeas litigation challenging the Executive’s immigration custody authority.
District Court Section
The District Court Section’s mission is to litigate, coordinate, and provide centralized expertise on nationally significant district court-related immigration matters across the 94 federal district courts. The Section also handles any affirmative and defensive appeals that result from these matters before 12 United States Courts of Appeals. The Section provides federal agencies and USAOs with counsel, guidance, and risk assessments on their implementation of, and litigation involving, admission, removal, employment authorization, and border security policies. The District Court Section’s case load includes:
- Defense of federal agencies’ immigration-related rulemakings;
- Defense of cases brought by noncitizens or organizations regarding acquisition of immigration benefits, removal, or detention pending removal (habeas), including related matters with a terrorism or national security nexus, or involving individuals with criminal convictions;
- Class action cases challenging policies and programs relating to the Executive Branch’s interpretation, administration, and enforcement of immigration law, including challenges to foreign worker and foreign investor programs;
- Citizenship and passport matters, except in cases where the Criminal Division retains jurisdiction (see JM 4-1.217); and,
- Affirmative civil enforcement actions related to civil denaturalization (see JM4-7.200), employer sanctions, or employment authorization.
AUSAs and agency counsel should send notifications of new civil cases to OIL-DCS.firstname.lastname@example.org and new civil denaturalization referrals to email@example.com. Copies of all immigration-related complaints and other pleadings served upon the USAO should be promptly forwarded to the District Court Section, including petitions by noncitizens for habeas corpus. The District Court Section should promptly notify USAOs if it will assume primary responsibility from, delegate to, or share civil immigration litigating responsibility with, USAOs in any case for which OIL is responsible.
Once an immigration case has been delegated to the USAO for primary handling, the USAO is not required to provide regular pleadings to the District Court Section. Significant litigation developments adverse to the government’s established immigration positions should be promptly brought the attention of the District Court Section, however. Similarly, the District Court Section will provide prompt notification to USAOs of significant developments concerning noncitizens involved in federal court litigation in their districts.
Contact: A helpful source for contact information for the various persons and offices within OIL can be found in the routinely updated internal compendium “Expertise in the Civil Division.”
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
Office of Immigration Litigation
District Court Section
P.O. Box 868
Ben Franklin Station
Washington D.C. 20044
[updated December 2022]
4-7.100 - Reporting of Decisions
All adverse decisions, and other outcomes as appropriate, in civil proceedings arising under the immigration and nationality laws (including habeas corpus petitions by noncitizens) should be reported to the District Court Section. In all cases in which the decision is adverse to the government, copies of the pleadings and other documents should be promptly submitted along with an appeal recommendation to OIL-DCS.firstname.lastname@example.org and Civ-OIL-DistrictCourtAdverseTeam@Civ.USDOJ.gov. See JM Title 2, Appeals.
USAOs should promptly advise the appropriate DHS agency of all decisions and interlocutory orders in civil immigration litigation to which the DHS agency is a party or active participant. 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’s Office to formulate the DHS agency 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 agency is an affected participant in the action.
4-7.200 - Revocation of Naturalization
The Enforcement Unit of OIL’s District Court Section has principal Departmental authority to coordinate and handle civil denaturalization affirmative litigation under 8 U.S.C. § 1451. The Enforcement Unit pursues cases in a manner consistent with the Civil Division’s prioritization system, which guides the evaluation of referrals and the determination of which § 1451 actions generally should be pursued when the Department determines that an individual “illegally procured” naturalization or procured his or her naturalization by “concealment of a material fact or by willful misrepresentation.” 8 U.S.C. § 1451(a). The Civil Division has adopted the following priorities:
- Cases against individuals who pose a potential danger to national security, including those with a nexus to terrorism, espionage, or the unlawful export from the United States of sensitive goods, technology, or information raising national security concerns.
- Cases against individuals who engaged in war crimes or human rights violations.
- Cases against individuals who committed very serious felonies that were not disclosed during the naturalization process. In determining whether there was a very serious felony, the following factors should be assessed:
- Whether the conduct shows the individual presents a significant ongoing risk to public safety or to vulnerable persons. Relevant to such a determination is whether the individual committed human trafficking, sex offenses, or violent crimes, or held a public-trust position.
- Whether the conduct resulted in conviction and involved substantial culpability or responsibility for an extensive and sustained criminal enterprise, or caused extraordinary harm to individuals or entities in the United States, including significant financial loss to individuals, entities, or the United States.
The decision to pursue denaturalization ultimately depends on all the facts and circumstances of the individual case. The categories above are intended to guide the Civil Division in prioritizing the cases to pursue. They do not forbid the Division from pursuing any particular case. The Division retains full discretion to pursue a case outside of these categories as the Division determines is appropriate in light of the facts and circumstances.
Moreover, not every case falling within a priority category should necessarily be pursued. The decision whether to file a complaint in a particular matter is a case-by-case determination to be made following a careful investigation and consideration of all relevant facts and circumstances. Particularly heightened scrutiny should be applied before invoking the narrow statutory provisions in which Congress has authorized civil denaturalization in connection with post-naturalization conduct. See 8 U.S.C. §§ 1439(f), 1440(c), 1451(c).
Where the outcome of a civil denaturalization proceeding may be affected by criminal or post-conviction proceedings, if any, the Division should strongly consider waiting until the completion of such proceedings before commencing a civil denaturalization case. Likewise, if criminal or post-conviction proceedings are initiated after a civil denaturalization case has commenced, the Division should strongly consider staying the civil denaturalization case pending completion of the criminal or post-conviction proceedings.
Furthermore, this prioritization system does not apply to matters that arise in connection with the negotiated terms of a criminal plea agreement—for example, where a defendant agrees in a criminal plea agreement to consent to civil denaturalization or not to oppose such proceedings. Department prosecutors are encouraged to consult with the Civil Division before entering into a plea agreement involving civil denaturalization.
Approval by the Assistant Attorney General for the Civil Division (or the individual functioning as the head of the Civil Division, if no AAG is in place) is required before the Enforcement Unit seeks written authorization from the relevant USAO (as required by 8 U.S.C. § 1451) to institute a civil denaturalization action. The submission of a prosecution memorandum to the Assistant Attorney General (or the individual functioning as head of the Civil Division) is required for each proposed civil denaturalization case. If preparation of a prosecution memorandum would be impracticable because of the need for expedited action, the case should be brought to the attention of the Assistant Attorney General (or the head of the Civil Division). In addition, no affirmative civil immigration suit should be instituted by a USAO without prior consultation with the Enforcement Unit by writing to email@example.com. For human rights violator-related civil denaturalization actions, USAOs should contact the Criminal Division’s Human Rights and Special Prosecutions (HRSP) Section as well (see JM 4-1.217).
The Enforcement Unit also regularly provides advice on criminal naturalization fraud prosecutions under 18 U.S.C. § 1425 and can participate in such cases on a case-by-case basis. USAOs should promptly notify the Criminal Division’s HRSP Section when they open any matter that involves the investigation or prosecution of a suspected human rights violator, even if charging torture, war crimes, genocide, female genital mutilation, or use or recruitment of child soldiers is not legally or factually possible or the matter will not require defining or proving those charges. See JM 9-2.139(c) and 9-142. In addition, prior express approval of the Assistant Attorney General (AAG) of the Criminal Division (or his or her designee) is required for certain court actions involving torture, war crimes, female genital mutilation, recruitment or use of child soldiers, or genocide, or for other cases involving perpetrators of human rights violation as determined by the AAG, see JM 9-2.139 and 9-142. Assistant U.S. Attorneys charging a violation of § 1425 should send an email containing the case name and number, and the names of the assigned AUSAs to firstname.lastname@example.org. AUSAs should also send an email notifying OIL’s Enforcement Unit of the resolution of all such cases to ensure proper notification is provided to DHS and the Department of State in all situations where an individual’s naturalization is revoked.
All complaints for revocation of naturalization filed pursuant to § 1451 should contain a demand that the certificate of naturalization and all United States passports be surrendered to the United States, see 8 U.S.C. § 1451(f), and all proposed orders to be signed by the court in such cases should provide for the prompt surrender of such documents. Upon receipt of the certificate and passport(s), the Enforcement Unit will oversee return of the certificate to DHS United States Citizenship and Immigration Services and any passport(s) to the Department of State in accordance with established protocols.
A defendant’s failure to comply with a court order requiring such surrender may constitute an independent criminal violation under 18 U.S.C. § 1428.
This section, and the prioritization system and prosecution memorandum requirement it refers to, do not, and may not be relied upon to, create or confer any right or benefit, substantive or procedural, enforceable at law or equity by any party in any administrative, civil, or criminal matter, or in any other form or manner. Likewise, this guidance does not place any limitations on the Civil Division’s otherwise lawful enforcement of the immigration laws or the Department of Justice’s litigation prerogatives. It is intended solely to provide internal direction to Department of Justice attorneys and staff.
[updated December 2022]