Immigration Litigation—Generally

April 2025: The Department is currently revising this guidance. For any questions about the scope or applicability of this section, please consult the Office of Immigration Litigation.

The Office of Immigration Litigation (OIL) is organized into two sections – the District Court Section and the Appellate Section.

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

tions, 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:

ecision 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).

e 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).

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:

ion 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.newcases@usdoj.gov

and new civil denaturalization referrals to

denaturalization@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 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.

ion-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.”

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

[updated September 2025]