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Prosecutorial Discretion: How to Advocate for Your Client

This Practice Advisory, updated following the issuance of Secretary Johnson’s November 20, 2014 memorandum on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants, explains what prosecutorial discretion is, who has authority to exercise it, and how it is exercised most often in immigration cases. It also suggests ways that attorneys can influence the favorable exercise of prosecutorial discretion by ICE, CBP and USCIS officers. 

Published On: Wednesday, March 18, 2015 | Download File

Teacher Vision

Studying immigration brings to light the many interesting and diverse cultures in the world. Browse our lessons, printables, references, and articles below for ideas on how to enhance your curriculum in this area. You'll find statistics on U.S. immigration, lessons on Ellis Island, information on the Pilgrims, and much more for grades K-12. Improve students' reading skills as they learn about the lives of immigrants with our language arts activities.

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Keep citizenship a right of birth

Published on Fri, Aug 06, 2010

Amid the illegal immigration debate is talk of overtunring the 14th Amendment, which grants citizenship to most children born here, regardless of their parents’ status. The American Immigration Council offers a host of essays against the proposal.

Published in the Albany Times Union

"Arriving Aliens" in Removal and Adjustment of Status

In 1997, the former INS adopted a regulation that barred all "arriving aliens" who were in removal proceedings from adjusting status. See former 8 C.F.R. § 245.1(c)(8) (1997). At the same time, INS adopted a regulation broadly defining the term "arriving alien." As a result, almost all parolees in removal proceedings were barred from adjustment of status. This regulation was withdrawn by the government in 2006 following litigation spearheaded by the LAC and was replaced by a regulation that gives USCIS jurisdiction over these adjustment applications.

CASES | ADVOCACY | RESOURCES

CASES

Challenges to the 1997 Regulation

The LAC filed amicus briefs in nine courts of appeals in which we challenged the regulatory bar to adjustment of status for “arriving aliens” in removal proceedings. Ultimately, three courts accepted our arguments that the regulation violated the statute. Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005); Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005); Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005). A fourth court followed the lead of these three courts.  Scheerer v. U.S. Attorney General, 445 F.3d 1311 (11th Cir. 2006). Two other courts rejected our arguments and upheld the regulation. Mouelle v. Gonzales, 416 F.3d 923 (8th Cir. 2005); Momin v. Gonzales, 447 F.3d 447 (5th Cir. 2006). In response to this litigation, the government withdrew the challenged regulation and adopted an interim regulation that provides USCIS with jurisdiction to adjudicate an adjustment application of an “arriving alien” who is in removal proceedings. 71 Fed. Reg. 27585 (2006).

Challenges Brought Under the Interim RegulationRead more...

Writing A Way In: Multiple Perspectives on Executive Action

The President’s Immigration Accountability Executive Action has been greeted with joy, relief, sadness, and contempt.  How can one decision trigger so many varied responses?  By weaving non-fiction accounts into creative writing, students will be able to write their way into understanding the multiple perspectives that surround this immigration issue. 

For lesson procedures, Common Core standards alignment, please click here.

Year Released: 2015

9-12+

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DREAM Act and Don’t Ask, Don’t Tell repeal derail defense bill vote

Published on Wed, Sep 22, 2010

Mary Giovagnoli, director of Immigration Policy Center, told TWI the vote showed “a lack of leadership” by Republican senators. “This was clearly putting procedural wrangling and partisan politics over social issues that are clearly something the American public wants action on,” she said.

Published in the Michigan Messenger

Habeas Corpus

Pursuant to 28 U.S.C. § 2241, noncitizens may file habeas actions if they are held in immigration “custody” by the federal government in violation of the Constitution, laws, or treaties of the United States. Noncitizens face many practical hurdles in filing habeas petitions, including detention in remote locations and the government’s practice of transferring detainees between facilities. These problems are exacerbated when courts adopt the inflexible “immediate custodian” rule—which requires naming the person with immediate, day-to-day control over the petitioner as the respondent—since the case always must be filed where the person is detained. The LAC has appeared as amicus curiae in cases before the federal courts of appeals to urge the adoption of a more flexible approach allowing either the Attorney General or the Secretary of DHS to be named as the proper custodian in habeas petitions.

CASESRESOURCES

CASES

Bell v. Ashcroft, Nos. 03-2737, 03-2977 (2d Cir. amicus brief filed May 7, 2004) (case settled without a decision from the court).

Roman v. Ashcroft, No. 02-3253 (6th Cir. amicus brief filed Oct. 10, 2003) (court issued a precedent decision finding that the Attorney General was not the proper custodian in this case, but noting that the Attorney General may be a proper custodian where the detainee would not otherwise have a “realistic opportunity for judicial review of his executive detention”). Roman v. Ashcroft, 340 F.3d 314 (6th Cir. 2003).Read more...

National debate heats up over DREAM Act

Published on Wed, Nov 24, 2010

Much of the new criticism is misleading, according to the nonpartisan Immigration Policy Center in Washington, which has published a point-by-point rebuttal.

Published in the San Diego Union Tribune

Litigation Clearinghouse Newsletter Vol. 3, No. 9

This issue covers updates to two naturalization delay cases; a circuit split on the interpretation of aggravated identity theft -- a development of heightened relevance because of recent immigration raids and prosecutions; and a successful challenge to a NY state licensing law.

Published On: Tuesday, August 5, 2008 | Download File