BIA Rejects Due Process Challenge Premised on Claims of Institutional Bias and Board Reorganization

The Board of Immigration Appeals has denied a motion to reopen built on allegations that the respondent's hearing was tainted by improper influence over the Immigration Judge, expedited handling, and systemic bias stemming from the Board's recent reorganization. The Board called the claims "conspiracy theories and innuendo" unsupported by credible evidence, rejecting a newspaper article and supporting affidavits as insufficient because the article consisted largely of anonymously-sourced opinion and none of the affiants had firsthand knowledge of the Board's internal deliberations.

The Board held that expedited case processing does not itself suggest prejudgment, that recusals from decisions about whether to publish a ruling as precedent have no bearing on the outcome of the underlying case, and that the reduction of the Board from 28 to 15 members — which nearly tripled the annual output of published decisions — reflects efficiency rather than compromised independence. Citing Liteky v. United States, the Board reiterated that adverse rulings alone, including an unfavorable venue determination or a discretionary denial of a statutory waiver, do not establish bias.

The full text of Matter of M-K- can be found here: https://www.justice.gov/eoir/media/1462911/dl?inline

Ninth Circuit Holds Thuraissigiam Does Not Strip Due Process Protections From Asylum Seekers Detained Far From the Border

The Ninth Circuit has affirmed a district court's denial of the government's motion to dismiss a long-running class action brought by asylum seekers subject to mandatory detention under the expedited removal statute, holding on interlocutory appeal that the court has jurisdiction over the class's constitutional challenge and that Department of Homeland Security v. Thuraissigiam does not eliminate their due process rights. The certified class consists of noncitizens who entered without inspection, were placed in expedited removal, and established credible fear of persecution or torture, but who remain subject to mandatory detention under 8 U.S.C. § 1225(b)(1)(B)(ii) without any opportunity for a bond hearing — a population DHS substantially expanded in January 2025 by designating virtually any inadmissible noncitizen apprehended anywhere in the country within two years of entry as subject to expedited removal.

On jurisdiction, the panel held that none of the four subsections of 8 U.S.C. § 1252(a)(2)(A) barred the district court from hearing the case, since the class challenged the constitutionality of the detention statute itself rather than any individual removal order, determination, or application of the statute to a particular case. On the merits of appealability, the court rejected the government's argument that Thuraissigiam forecloses the claim entirely. Writing for the majority, Judge Berzon distinguished Thuraissigiam, which involved a noncitizen apprehended 25 yards from the border moments after crossing, as limited to individuals at the "threshold of initial entry." The class here includes people apprehended tens or hundreds of miles from the border, months or up to two years after entry — well outside that narrow category. The court reaffirmed the longstanding rule that the Due Process Clause protects all persons in the United States regardless of immigration status and traced the distinction between the government's broad power over admission decisions and the much more constrained, centuries-old limits on its power to detain. Judge Friedland concurred in the judgment on the narrower ground that the class definition alone placed its members outside Thuraissigiam's scope, without reaching the admission-versus-detention analysis.

The full text of Padilla v. U.S. Immigration and Customs Enforcement can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/09/21/24-2801.pdf

Ninth Circuit Holds Mis-Mailed Notice of DHS's Appeals Violated Detained Noncitizen's Due Process Rights

The Ninth Circuit has granted a petition for review filed by a Jamaican man twice granted withholding of removal by an immigration judge, holding that his due process rights were violated when the BIA mailed notice of two separate DHS appeals to detention addresses that DHS itself had informed the agency were incorrect, excluding him entirely from both appellate proceedings.

The Court held that once DHS notifies the BIA that a detained noncitizen's location differs from the address used for mailing, the government's failure to take any additional reasonable steps to locate him renders the notice constitutionally inadequate, and that the petitioner was prejudiced because he never had the chance to argue that his misdemeanor marijuana conviction was not categorically a drug-trafficking aggravated felony under the categorical approach.

The full text of Jacques v. Blanche can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/08/28/23-3015.pdf

BIA Clarifies the Statutory Minimum Time to Secure Counsel Before Ordering Removal

The Board of Immigration Appeals has dismissed the appeal of a detained Indian respondent ordered removed after failing to timely file an application for relief, holding that the only statutory or regulatory time requirement protecting the right to seek counsel is that the first hearing not be scheduled earlier than ten days after service of the notice to appear.

The Board withdrew from language in Matter of C-B- suggesting immigration judges must afford a "reasonable and realistic" period to seek counsel beyond that statutory minimum, calling the language unsupported dicta that departed from the text of the INA. Because the respondent's first hearing occurred twenty-six days after service and he received two continuances thereafter without showing any imminent prospect of retaining counsel, the Board held the immigration judge did not abuse his discretion in denying a third continuance.

The full text of Matter of A-K-R- can be found here: https://www.justice.gov/eoir/media/1458041/dl?inline

Fifth Circuit Affirms Habeas Relief for Long-Term Residents Held Without Bond Under Section 1225

The Fifth Circuit has affirmed habeas relief for three long-term undocumented residents of Texas, each detained without a bond hearing after the government reinterpreted 8 U.S.C. § 1225(b)(2)(A) to mandate detention for unadmitted noncitizens found anywhere in the country's interior, not just at the border. None of the three men had a criminal history or removal order, and each has U.S. citizen children.

The Court held that even under this new statutory interpretation, the Due Process Clause requires the government to provide a bond hearing within ninety days of detention, since Congress made no individualized or categorical findings that noncitizens like the petitioners pose a danger or flight risk sufficient to justify mandatory, bondless detention.

The full text of Sosnava Rodriguez v. Ortega can be found here: https://www.ca5.uscourts.gov/opinions/pub/26/26-50219-CV0.pdf

Eight days later, the Fifth Circuit granted en banc rehearing in the matter, vacating the three-judge panel’s decision: https://www.ca5.uscourts.gov/opinions/pub/26/26-50219-CV1.pdf

D.C. Circuit Vacates Stay of Expedited Removal Expansion

The D.C. Circuit has vacated a district court order staying DHS’s 2025 expansion of expedited removal. The challenged designation expanded expedited removal to the maximum statutory scope, covering unlawfully present noncitizens who cannot show at least two years of continuous presence in the United States.

The Court held that the plaintiffs were unlikely to succeed on their due process challenge. The Court rejected any argument that government officials must advise non-citizens about the two years presence requirement or that the failure to follow the law by individual immigration officers invalidates the expansion itself. The Court therefore vacated the district court’s nationwide APA stay. The Court left open the question of what, if any, remedy exists to address an officer who issues an expedited removal order even when a non-citizen can show two years of continuous presence, recognizing that the statutory scheme governing judicial review of expedited removal orders does not permit a court to examine if the non-citizen has been present for two years.

The full text of Make the Road New York v. Mullin can be found here: https://media.cadc.uscourts.gov/opinions/docs/2026/06/25-5320-2179963.pdf

Ninth Circuit Finds English-Language Notice of Address Obligations Satisfies Due Process

The Ninth Circuit has determined that DHS is not constitutionally required to translate a Notice to Appear into a respondent's native language in order to advise the respondent of the obligation to update her address. The petitioner argued that her in absentia removal order should be reopened because the English-language notice did not adequately advise her, in Spanish, that she had to update her address with the immigration court.

The Court rejected that argument, finding that English-language written notice can satisfy due process when it is reasonably calculated to inform the respondent of her obligations. Because the petitioner moved without updating her address, the later hearing notice mailed to her last known address was sufficient.

The full text of Urquia-Yanez v. Blanche can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/05/08/25-1136.pdf

BIA Rules Non-Citizen has no Right to Make Closing Argument

The Board of Immigration Appeals has determined that a non-citizen has no right to make a closing argument unless he can show that the denial of the opportunity to make the argument amounts to a due process violation.

The full text of Matter of A-M-Z-F- can be found here: https://www.justice.gov/eoir/media/1436011/dl?inline

Ninth Circuit Finds Notice of Appeal Insufficiently Specific

The Ninth Circuit has determined that a Notice of Appeal that states that an Immigration Judge’s decision was “wrongfully made” was insufficient to put the Board of Immigration Appeals on notice that the appellant was raising a due process claim.

The full text of Santana-Gonzalez v. Bondi can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/04/08/16-70793.pdf

Ninth Circuit Requires Prejudice to Show Counsel-Related Due Process Violation During Reinstatement

The Ninth Circuit has determined that a non-citizen undergoing the reinstatement of a prior removal order can only show that deprivation of counsel violated his due process rights if he can establish prejudice.

The full text of Verduzco Ruiz v. Bondi can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/04/01/18-71787.pdf

Ninth Circuit Imposes Additional Notice Requirements on the Government in Removal Proceedings

The Ninth Circuit has determined that when the government becomes aware that notice of an upcoming removal hearing has been ineffective (i.e., notice has been returned), it must take additional steps, when practicable, to provide notice to the non-citizen. In this case, the Court found that personal service of the Order to Show Cause - which did not contain the date and time of the first immigration court hearing - was not sufficient on its own. Furthermore, even if a non-citizen has failed to update his or her address with the immigration court, they have not forfeited their constitutional right to notice.

The Court also suggested certain practicable steps that the government could take when a notice of hearing is returned as undeliverable. “One alternative is to consider whether the address in the A-file matched the address to which the Government sent the notice of hearing by certified mail. The record indicates that, when the approval of Rivera-Valdes’s employment authorization application was sent to the Cleveland address that included ’Ave.,’ he showed up to retrieve his authorization papers. It was only after subsequent mailings were sent without the word ‘Ave.’ in the Cleveland address that the OSC and notice of hearing were returned as ‘not deliverable as addressed’ and ‘unclaimed.’ The district court should consider if any discrepancy in the addresses was a basis for the unsuccessful mailings, and if so, whether the Government could have taken additional steps to correct it.

The dissent concludes that remand is unnecessary because Rivera-Valdes ‘confirmed’ or ‘corroborated’ that the address listed on the OSC—which omitted the word ‘Ave.’—was his current address. But the dissent misreads what the OSC actually states. The OSC did not prompt Rivera-Valdes to confirm the accuracy of the OSC. Rather, the OSC’s signature line prompted Rivera-Valdes’s ‘acknowledgment/receipt of this form.’ This stands in contrast, for example, to the signature line in Rivera-Valdes’s application for employment authorization, which required that the signer ‘certify under penalty of perjury under the laws of the United States of America, that the foregoing is true and correct.”’ In that document, Rivera-Valdes listed his N. Cleveland address with the word ‘Ave.’”

“Another alternative for the district court to consider may be whether sending the notice of hearing by first-class mail was a feasible option. In Yi Tu, we observed that first-class mail may be a reasonably calculated alternative because it can ‘be examined at the end of the day, [whereas certified mail] can only be retrieved from the post office for a specified period of time.’”

The full text of U.S. v. Rivera-Valdes can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/18/21-30177.pdf

Second Circuit finds DOS Violated US Citizen's Due Process Rights when Revoking CRBA

The Second Circuit has determined that the Department of State violated a U.S. citizen’s due process rights when it confiscated and revoked his Consular Report of Birth Abroad and would not issue him a temporary passport to return to the United States to attend an administrative hearing contesting the revocation. The court also expressed skepticism that the only proof of fraud DOS produced was a written “confession” entirely in English signed by a person who is illiterate in English.

The full text of Hadwan v. Department of State can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/65d213a2-d436-4be7-a7f0-e13649f58212/9/doc/22-1624_complete_opn.pdf

Ninth Circuit Finds Faulty Translation Violated Non-Citizen's Right to Counsel

The Ninth Circuit has determined that a non-citizen’s right to counsel was violated when an interpreter translated his right to counsel as the right to “hire” an attorney. “Considering these circumstances, Valdivias’s right to counsel was effectively lost in translation by the interpreter’s repeated use of the Spanish word for ‘hire’ in describing that right. This suggested that Valdivias could enjoy the privilege of being represented only if he could pay for an attorney. But as the statutory and regulatory scheme make clear, Valdivias had the right to be represented by a pro bono attorney if he could locate one; and, indeed, he was entitled to a list of lawyers, organizations, and referral services willing to help him obtain pro bono representation.” “Because Valdivias was allowed to proceed pro se without having validly waived his right to counsel, his removal proceedings violated due process.”

The full text of U.S. v. Valdivias-Soto can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/09/20-10415.pdf

Ninth Circuit Reiterates Authentication Requirement

The Ninth Circuit has reiterated the requirement that official documents be authenticated in removal proceedings. It suggested that the procedures for authentication of domestic records in 8 C.F.R. 287.6 may be mandatory, but did not ultimately conclude what procedures are required because the petitioner failed to object to the documents on authenticity grounds before the immigration judge.

The full text of Smith v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/06/03/22-954.pdf

Ninth Circuit Finds Due Process Violation by Deeming Application Abandoned

The Ninth Circuit has determined than an Immigration Judge violated an applicant’s due process rights by deeming his asylum application abandoned without unambiguously setting a filing deadline, especially after his attorney offered to file the application later the same day.

The full text of Arizmendi-Medina v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/07/21-298.pdf

Third Circuit Defines Fundamental Rights

The Third Circuit has reiterated that only a violation of a fundamental right results in automatic remand without a showing of prejudice. “For a regulation to protect a fundamental right, a violation must be a structural error that necessarily makes proceedings fundamentally unfair. Very few rights will fit this extraordinary category. [T]hese include the rights to counsel and to an unbiased judge. But rights outside this category are not fundamental enough to trigger [a] presumption of prejudice.”

The full text of Gonzalez Aquino v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/213317p.pdf

Seventh Circuit Finds No Prejudice from Defective Reinstatement Order

The Seventh Circuit has recognized the defects in a reinstatement order (namely, that it was signed more than 6 months before the petitioner was given an opportunity to respond to it), but denied the petition for review due to a lack of prejudice caused by the deficiencies.

The full text of Casas v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D08-29/C:20-1739:J:Jackson-Akiwumi:aut:T:fnOp:N:2924397:S:0

Fourth Circuit Remands due to IJ Conduct

The Fourth Circuit has remanded a case for the agency to determine whether a petitioner is entitled to a hearing before a new immigration judge due to the conduct of the presiding immigration judge, and whether the petitioner is required to show prejudice due the judge’s conduct.

The full text of Tinoco Acevedo v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/202048.P.pdf

Fourth Circuit Reverses Injunction on Burdens of Proof in Bond Proceedings

The Fourth Circuit has reversed a class-wide injunction requiring DHS to bear the burden of proof on flight risk and danger to the community in bond proceedings. The court concluded that “1252(f)(1) expressly precludes ‘jurisdiction or authority to enjoin or restrain’ provisions of the immigration laws, including § 1226(a), on a class-wide basis.”

With respect to the claim of an individual class member that DHS should bear the burden of proof in bond proceedings, the Court concluded that noncitizens “are due less process when facing removal hearings than an ordinary citizen would have.” The court concluded that the procedures employed in bond hearings that place the burden of proof on the non-citizen comply with the requirements of due process. The court acknowledged that this creates a circuit split with the First Circuit.

Finally, the court also rejected the argument that due process requires an immigration judge to consider a non-citizen’s ability to pay when setting a bond amount. The court acknowledged that this creates a circuit split with the Ninth Circuit.

The full text of Miranda v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/201828.P.pdf

Ninth Circuit Remands Asylum Claim for Gay Nigerian Man

The Ninth Circuit has remanded an asylum claim for a gay Nigerian man, finding that a lie about the name of the hotel where was seen having sex with his boyfriend was not related to a material element of his claim. As such, the agency’s frivolous finding did not withstand scrutiny. In addition, the applicant had presented numerous corroborating documents establishing that he was gay, and the agency ignored these documents, in violation of the applicant’s due process rights.

The full text of Udo v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/04/20-70078.pdf