4-7.000 - Immigration Litigation

4-7.010 Immigration Litigation—Generally
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 three sections – the District Court Section, the Appellate Section, and the Enforcement Section. OIL attorneys vigorously defend Executive Branch decisions regarding border security and pursue consistent enforcement of the country’s immigration laws. 

Appellate Section

The Appellate Section defends petitions for review from Board of Immigration Appeals’ final orders of removal before the federal appellate courts. Appellate attorneys handle removal cases in the Courts of Appeals and support the Office of the Solicitor General’s immigration litigation efforts in the U.S. Supreme Court. 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 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 Executive Office for Immigration Review’s (EOIR) Board of Immigration Appeals. Certified records of proceedings before immigration judges are prepared by EOIR; requests for such records should be made through the Appellate Section.

In addition, the Appellate Section also provides advice and counsel to the Offices of the United States Attorneys (USAOs) prosecuting criminal immigration issues that overlap with the Section’s civil litigation. This Section provides support and counsel to all federal agencies involved in the admission, regulation, and removal of aliens under United States’ immigration and nationality statutes, as well as related areas of border enforcement and national security.

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 ninety-four (94) federal district courts and resultant appeals before twelve (12) United States Court of Appeals. The majority of the Section’s cases are defensive. The District Court Section’s defensive case load has seen significant growth in recent years, resulting in part from a renewed emphasis on immigration matters, including the factors outlined below:

  • High-profile litigation surrounding the Administration’s priorities;
  • A significant increase in time-sensitive, high-visibility programmatic litigation, particularly with regard to the nation’s foreign worker programs;
  • Defense of numerous cases brought by known or suspected terrorists and convicted criminals attempting to acquire immigration benefits, thwart removal, or avoid mandatory detention pending removal, including naturalization claims of members of Hamas, Al-Qaeda, and Al-Shabab; and
  • Numerous class action cases challenging critical policies and programs relating to the Federal Government’s interpretation, administration, and enforcement of immigration law.

 

Additionally, the District Court Section is responsible for litigation involving citizenship and passport matters (except as to cases over which the Criminal Division retains jurisdiction, see JM 4-1.217), 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.

AUSAs and agency counsel should send notifications of new civil cases to OIL-DCS.newcases@usdoj.gov. USAO recommendations regarding appeal of civil immigration related district court litigation should be sent to OIL-DCS.newcases@usdoj.gov, Jessica.W.DArrigo@usdoj.gov, and Darryl.K.Knox@usdoj.gov. 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 aliens for habeas corpus. The District Court Section should promptly notify USAOs if it will assume primary responsibility, 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 for primary handling to the USAO, it is not necessary to provide pleadings to the District Court Section, but if there are significant litigation developments adverse to the government’s established immigration positions, such pleadings or rulings should be promptly brought the attention of the District Court Section. Similarly, the District Court Section shall endeavor to provide prompt notification to USAOs of significant developments concerning aliens involved in federal court litigation in their districts.

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.

Enforcement Section

The Enforcement Section is charged with prosecuting affirmative civil enforcement actions arising out of immigration offenses (except as to civil actions over which the Criminal Division retains jurisdiction, see JM 4-1.2170). The Enforcement Section has principal Departmental authority to coordinate and handle civil denaturalization affirmative litigation under 8 U.S.C. § 1451 against terrorists, violent criminals, child sex abusers and other sex offenders, fraudsters, human rights violators, and war criminals.

No affirmative civil immigration suit should be instituted by a USAO without prior consultation with the Enforcement Section by writing to denaturalization@usdoj.gov. For human rights violator-related civil denaturalization actions, USAOs should contact the Criminal Division’s Human Rights and Special Prosecutions (HRSP) Section as well.

The Enforcement Section 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.  The Criminal Division’s Human Rights and Special Prosecutions Section also provides advice on such prosecutions when they concern allegations of participation in human rights violations.  If a human rights violation is one of the allegations that gives rise to a criminal naturalization fraud prosecution, then notification and consultation requirements may apply; see JM 9-2.139 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 a torture, war crimes, female genital mutilation, recruitment or use of child soldiers, or genocide matter, 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 18 U.S.C. § 1425 should send an email containing the case name and number, and the names of the assigned AUSAs to denaturalization@usdoj.gov.  AUSAs should also send an email notifying OIL’s Enforcement Section 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.

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.”

Mail:

Office of Immigration Litigation
Appellate Section
Civil Division
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044

 

Office of Immigration Litigation
District Court Section
Civil Division
P.O. Box 868
Ben Franklin Station
Washington D.C. 20044

 

Office of Immigration Litigation
Enforcement Section
Civil Division
P.O. Box 868
Ben Franklin Station
Washington D.C. 20044

[updated December 2020]


4-7.100 - Reporting of Decisions

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 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-DCSnewscases@usdoj.gov, Jessica.W.DArrigo@usdoj.gov, and Darryl.K.Knox@usdoj.gov. See JM Title 2, Appeals.

USAOs should promptly advise both the District Court Section and 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’s 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.

[updated April 2018]


4-7.200 - Revocation of Naturalization

No suit shall be instituted by the USAO to revoke naturalization under 8 U.S.C. § 1451 or §§ 1439 or 1440 (related to revocation of naturalization obtained through military service) without prior consultation with OIL’s Enforcement Section and with the Criminal Division’s Human Rights and Special Prosecutions Section in any case involving a Nazi persecutor or human rights abuser (see JM 4-1.217).

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 Section will oversee return of the certificate to USCIS 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.

[updated December 2020]

Updated December 7, 2020