It is only August, and the Board of Immigration Appeals has already spent 2026 producing precedent decisions at a pace that suggests somebody at EOIR installed a button labeled MAKE IMMIGRATION LAW WORSE and then rested a brick on it.

The remarkable thing is not simply that respondents keep losing. Respondents have always lost cases before the BIA, sometimes deservedly, and bad facts do not become good facts merely because the government is unsympathetic. What is remarkable about this year’s crop is the accumulation of rules that make protection harder to obtain, government allegations easier to credit, procedural defaults more catastrophic, and Immigration Judges less able to do anything useful about any of it.

A beating during political detention is not severe enough. A government’s demonstrably ineffective efforts against organized crime may nevertheless defeat CAT acquiescence. A domestic-violence survivor’s proposed social group is simultaneously too circular and insufficiently particular. Social distinction should generally be measured across an entire country rather than in the actual community where the alleged social distinction exists. DHS may invoke an asylum cooperative agreement orally, need not necessarily produce the instrument containing its operating procedures, and may obtain pretermission without an evidentiary hearing when the record lacks sufficiently individualized evidence.

Then, on August 13, the Board decided that advance parole really does involve a “departure” after all, overruling fourteen years of its own precedent.

Apparently what immigration law lacked was more traps.

What follows is a tour through some of the most consequential and, at times, genuinely deranged BIA decisions of 2026 so far: what they hold, why the reasoning matters beyond the individual respondent, and why practitioners should be paying very close attention.

1. Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026): Congratulations on Your Government-Authorized Travel. It May Now Trigger a Ten-Year Bar.

For fourteen years, Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), stood for an enormously important proposition. A person who temporarily left the United States pursuant to advance parole did not thereby make a “departure” that triggered the unlawful-presence inadmissibility provisions of INA § 212(a)(9)(B).

There was a perfectly sensible logic behind the rule. A departure on advance parole was “qualitatively different” from an ordinary departure because the government itself authorized the temporary trip in contemplation of the person’s return. The traveler was not simply packing a suitcase, abandoning the United States, and later trying to come back. The federal government had affirmatively created a mechanism allowing that person to travel temporarily and return to continue pursuing immigration benefits.

On August 13, 2026, the Board overruled Arrabally. It now holds that leaving pursuant to advance parole is a “departure” because, stripped to its dictionary definition, to depart means to leave. The opinion actually consults Merriam-Webster for the proposition that “depart” means “to go away: leave,” which is certainly one way to dismantle fourteen years of immigration practice.

The problem is not that dictionaries are illegitimate tools of statutory construction. The problem is pretending that identifying the ordinary meaning of “departure” answers the entire interpretive question. Arrabally recognized that statutory terms operate within statutory schemes and that a government-authorized temporary trip, undertaken with advance permission to return, occupies a peculiar legal position. Delcarmen-Lara largely drains that institutional context from the inquiry and announces that leaving is leaving.

The resulting regime is absurd enough to explain itself. The government may effectively tell a noncitizen, “We grant you advance permission to leave temporarily and return,” while immigration law simultaneously warns, “By using the permission we just granted you, you may trigger a ten-year inadmissibility bar.”

That is not coherent administration. It is a side quest designed by a malicious dungeon master.

To the Board’s credit, it makes the new rule prospective, expressly recognizing the reliance interests generated by Arrabally. That softens the immediate damage. It does not make the new interpretation any less perverse.

For practitioners, the practical point is straightforward: advice about advance-parole travel that was routine under Arrabally cannot simply be recycled after August 13, 2026. A government document bearing the word “advance” does not, regrettably, mean that the government has thought through what happens next.

2. Matter of L-L-R-, 29 I&N Dec. 799 (BIA 2026): Family Reunification, but Make It a Good-Moral-Character Bar

In Matter of L-L-R-, the respondent’s involvement with a smuggler who brought his own child into the United States constituted assisting or aiding another person to enter unlawfully under INA § 212(a)(6)(E)(i). That conclusion, in turn, triggered the statutory good-moral-character bar in INA § 101(f)(3), making the respondent ineligible for cancellation of removal.

There is a textual argument for the result. The alien-smuggling provision is broad, and immigration statutes have never been especially sentimental about parents facilitating unlawful entry by their children. The perversity emerges from the statutory interaction. Conduct undertaken to reunite a parent with his own child is converted, through cross-reference, into a legal declaration that the parent cannot establish good moral character.

That phrase matters. Congress did not call § 101(f) “the miscellaneous list of statutory cancellation disqualifiers.” It chose a moral label, and immigration law then applies that label mechanically to circumstances in which moral judgment is anything but simple.

A parent can make a desperate, unlawful, even objectively bad decision for reasons rooted in family attachment, fear, poverty, or separation. The law is entitled to impose consequences on that decision. What is harder to stomach is the transformation of the conduct into a conclusive answer to an entirely different question about the person’s moral character.

Immigration law performs this trick with impressive regularity. It takes a complicated human event, passes it through several cross-referenced provisions, and eventually spits out a moral conclusion that nobody actually had to make.

Nothing says “family values” quite like converting family reunification into a character defect.

3. Matter of L-F-R-, 29 I&N Dec. 787 (BIA 2026): Welcome to Asylum as a Subscription Service

In Matter of L-F-R-, the Board held that an applicant who fails to pay the required annual asylum fee within the prescribed deadline should have the asylum application pretermitted or deemed abandoned. The decision correctly distinguishes asylum from statutory withholding and CAT protection, which are not extinguished by the annual-fee requirement.

An important caveat belongs at the outset. The BIA did not invent the annual asylum fee. Congress did. Criticism of the decision should therefore focus on what the Board actually did rather than pretending three appellate immigration judges spontaneously created Asylum Plus.

What the Board did was attach a breathtaking procedural consequence to nonpayment. A person may have a credible asylum claim. The persecutor may still exist. The applicant’s testimony may remain unchanged. Country conditions may remain unchanged. Nothing about the merits of the protection claim has necessarily deteriorated by one atom. Nevertheless, asylum itself may vanish because the annual payment was not timely made.

There are obvious governmental interests in fee collection and compliance with statutory requirements. The troubling question is why an unpaid fee should function as a merits-annihilating device rather than an ordinary financial obligation subject to collection, cure procedures, or some consequence proportionate to the violation.

The answer supplied by the decision is that the application can simply be pretermitted or treated as abandoned.

Thus asylum has finally adopted the customer-service philosophy of a cable company: your protection package has expired because we could not process your annual payment.

The only difference is that Comcast generally does not send you back to the country where you claim someone intends to kill you.

4. Matter of A-C-M-, 29 I&N Dec. 703 (BIA 2026): Why Hold a Hearing When You Can Decide There Is Not Enough Evidence to Justify One?

The Board’s asylum-cooperative-agreement decisions form one of the most disturbing clusters of the year, and Matter of A-C-M- supplies the first piece.

The Board held that when an applicant is subject to an asylum cooperative agreement and the record contains no evidence of an individualized risk of harm in the proposed third country, an Immigration Judge generally need not conduct an evidentiary hearing to determine the applicability of the safe-third-country bar.

There is an internal logic to this. Courts do not ordinarily hold evidentiary hearings merely for sport, and a party who bears a burden must eventually produce evidence capable of creating a material factual dispute.

The problem is that immigration court is not summary judgment practice in federal district court, and the respondent in A-C-M- was unrepresented. The rule creates an uncomfortable circularity: the applicant may need sufficiently individualized evidence already in the record to earn the kind of hearing at which an ordinary litigant might assume evidence could be developed and tested.

That is a formidable expectation to impose on represented respondents. Applied to a pro se asylum seeker navigating a rapidly changing safe-third-country regime, it becomes almost theatrical.

The practical message is that the applicant must arrive ready to litigate the factual danger of transfer before the tribunal necessarily needs to give her a meaningful evidentiary opportunity to litigate the factual danger of transfer.

Kafka might have rejected the setup as insufficiently subtle.

5. Matter of E-A-R-M-, 29 I&N Dec. 746 (BIA 2026): DHS Apparently May Alter the Stakes With the Litigation Equivalent of “By the Way, Ecuador”

The next installment is Matter of E-A-R-M-, where the Board held that DHS’s oral motion to pretermit the respondents’ applications for asylum and related protection provided sufficient notice of its intent to remove them to Ecuador pursuant to an asylum cooperative agreement.

The issue is not whether oral notice can ever satisfy due process. Of course it can. The problem is the institutional asymmetry exposed by the decision.

Immigration practitioners operate in a system obsessed with procedural exactitude. Respondents may suffer devastating consequences from missed filing deadlines, defective service, incorrect forms, missing translations, absent certificates, improper filing methods, late exhibits, and failures to satisfy increasingly elaborate administrative requirements. Lawyers have developed entire professional neuroses around checking whether page 247 of an exhibit packet contains the proper translation certification.

Against that backdrop, DHS may apparently announce in court that it intends to invoke an agreement that could determine whether the United States adjudicates the asylum claim at all and which third country receives the applicants, and the Board is satisfied that the oral motion supplies the required notice.

The contrast practically writes its own satire. When the respondent has a procedural obligation, the system demands Swiss-watch precision. When the government has one, “Your Honor, Ecuador” may apparently get the job done.

There may be circumstances in which oral notice genuinely provides ample time and opportunity to respond. But that should make the adequacy of the particular notice a serious functional inquiry, not an occasion to normalize informality precisely where the consequences are enormous.

6. Matter of N-E-R-S-, 29 I&N Dec. 753 (BIA 2026): You Do Not Necessarily Get the Whole Rulebook Either

If E-A-R-M- relaxes what DHS must provide by way of notice, Matter of N-E-R-S- goes after what DHS must provide by way of the governing framework.

The Board held that DHS need not provide the implementing instrument containing an ACA’s operating procedures or a complete set of operative terms and criteria in order to establish that a respondent is subject to the agreement for purposes of the safe-third-country bar.

That holding would be easier to swallow if the omitted material were administrative trivia. It was not. The agreement contemplated subsequent operating procedures containing criteria relevant to transfer. The Board nevertheless concluded that the implementing instrument was not itself part of the ACA in the sense necessary to require its production.

The procedural picture produced by the trilogy is therefore remarkable. DHS can invoke the third-country mechanism. Oral notice may suffice. The government need not necessarily place the complete operating framework before the tribunal. An evidentiary hearing may be unnecessary if the applicant has not already supplied adequate individualized evidence.

Meanwhile, the respondent is expected to figure out whether she is subject to the arrangement, identify the legally relevant exception, develop individualized evidence concerning danger in a country where she may never have lived, and do so against a governmental mechanism whose operational details may not all be before the court.

At that point, the proceeding begins to resemble less an adjudicatory process than a bureaucratic escape room in which DHS has the answer key and the applicant is told that requesting to see it demonstrates insufficient preparation.

Taken together, A-C-M-, E-A-R-M-, and N-E-R-S- reveal a striking distribution of procedural generosity. The government’s burdens become light and flexible precisely as the respondent’s become technical, anticipatory, and unforgiving.

The seesaw is perfectly balanced, provided one ignores that DHS is sitting on the ground while the asylum seeker is forty feet in the air.

7. Matter of S-E-M-Z-, 29 I&N Dec. 680 (BIA 2026): Your Family May Be Socially Distinct, but Has the Entire Republic of Honduras Been Consulted?

Particular social group doctrine was already one of immigration law’s great monuments to unnecessary abstraction. Matter of S-E-M-Z- somehow makes it worse.

The Board held that the “social distinction” element of a PSG generally must be measured on a countrywide basis, rather than from the perspective of a neighborhood or another geographically limited part of society.

The conceptual problem is profound. Human beings do not experience “society” exclusively as a nation-sized abstraction. Social meaning is created inside villages, neighborhoods, tribes, clans, religious communities, ethnic communities, professions, castes, families, and other groups that may be intensely legible to the people who inhabit them and completely irrelevant to somebody hundreds of miles away.

If every person in a particular village knows which family has been marked by a gang, the relevant persecutors know which family has been marked, and the family itself occupies a recognizable social position in that community, it is not obvious why a dentist in another province must also recognize the group before asylum law is permitted to notice it.

The countrywide approach substitutes national generality for social reality. Persecution is frequently hyperlocal. Social identification can be hyperlocal. Political power can be hyperlocal. Gang control can be hyperlocal. Tribal organization can be hyperlocal. The Board’s answer is nevertheless that social distinction ordinarily should be tested across the country as a whole.

Imagine applying that method to any other social phenomenon. Everyone in a particular town may know that two families have been feuding for generations, but apparently we cannot confidently say the families are socially distinct until the nation has been polled.

The persecutor, inconveniently, does not require Gallup’s assistance before deciding whom to target.

8. Matter of V-A-B-, 29 I&N Dec. 621 (BIA 2026): Domestic-Violence PSG Doctrine Once Again Discovers That Every Possible Formulation Is Somehow Wrong

In Matter of V-A-B-, the proposed particular social group was “married Mexican women who are unable to leave their relationship.” The Board held that the group was not cognizable because it was circularly defined and lacked particularity. It also held that a lawful marriage cannot simply be presumed from cohabitation or the existence of children.

The broader problem will be painfully familiar to anyone who has litigated domestic-violence asylum cases.

Formulate the group broadly and the government objects that it lacks particularity. Make the group more specific and it becomes circular. Define it by gender and nationality and it is too broad. Add relationship status and the formulation may become insufficiently precise. Describe the inability to leave, which is often the central social condition explaining why the abuse becomes inescapable, and the government argues that persecution has been smuggled into the definition itself.

At some point the doctrinal exercise begins to resemble Lucy holding the football for Charlie Brown. The applicant is repeatedly invited to formulate the “correct” social group, while the acceptable formulation retreats another ten yards every time she approaches it.

The decision also reflects a deeper problem with treating “unable to leave” as though it were merely a synonym for “being abused.” In many domestic-violence cases, inability to leave describes a social condition produced by legal, cultural, economic, familial, and institutional constraints. Whether that condition can satisfy PSG requirements should turn on careful analysis of the society and record, not an incantation of the word “circular.”

Immigration law instead continues searching for the Platonic domestic-violence social group that is specific enough to exist, broad enough not to be circular, socially distinct enough to count, and somehow entirely independent of the circumstances that make its members vulnerable.

Best of luck to everyone involved.

9. Matter of D-G-E-A- & N-G-G-E-, 29 I&N Dec. 570 (BIA 2026): Your Opposition to the Gang Is Not Political Unless the Gang Has Apparently Taken Political Science

In Matter of D-G-E-A- & N-G-G-E-, the Board held that opposition to criminal gangs is not, standing alone, sufficient to establish political opinion. More significantly, it described a qualifying political opinion as an actual or imputed belief or conviction concerning a discrete cause tied to a government, including a de facto government.

The first proposition is unremarkable. A person who refuses to pay a criminal because she would prefer to keep her money has not automatically expressed a political opinion. Asylum law has always required something more than a personal dispute with a criminal organization.

The difficulty lies in the Board’s effort to tether political opinion to a governmental or de facto governmental framework. In many countries, gangs and cartels do not simply commit crimes alongside a functioning state. They tax neighborhoods, regulate commerce, dictate movement, recruit children, punish cooperation with police, control territory, select local officials, corrupt security forces, enforce social rules, and decide who may live or operate a business within areas they dominate.

At some point, opposition to such an organization can become political even if the organization has neglected to issue a constitution and apply for observer status at the United Nations.

Political opinion should turn principally on the meaning attributed to the person’s conduct, including by the persecutor, within the political and social structure that actually exists. It should not depend upon whether American adjudicators can comfortably place the persecutor inside a tidy taxonomy labeled “government,” “de facto government,” or “mere criminal gang.”

People confronting an extortion demand rarely pause to determine whether their persecutor satisfies the relevant criteria for sovereign authority. The gang itself may nevertheless understand resistance as a challenge to the social order it violently administers.

Reality is often politically messier than the BIA would prefer.

10. Matter of A-H-D-, 29 I&N Dec. 642 (BIA 2026): Three Days of Political Detention and a Beating Are Apparently Not Quite Persecutory Enough

Few phrases in asylum jurisprudence have done more emotional heavy lifting than “does not rise to the level of persecution.”

In Matter of A-H-D-, the respondent was detained by police for three days after participating in a political march and beaten once during that detention. The Board held that the episode did not constitute persecution because the beating did not cause significant injury. The decision also held that a government’s general deference to tribal mechanisms for resolving tribal conflict does not itself demonstrate that the government is unable or unwilling to control persecutors within the tribe.

The cumulative facts matter. This was not an accidental shove during a street dispute. It involved state detention, political activity, confinement lasting several days, and physical violence inflicted while the respondent was in custody.

The Board nevertheless emphasizes the absence of significant injury, continuing a deeply troubling tendency to make bodily damage do work that the persecution inquiry should assign to context, coercion, state power, duration, fear, and political purpose.

Persecution is not a workers’ compensation schedule. A government does not need to fracture the correct number of ribs before detention and physical abuse acquire persecutory significance.

One is tempted to imagine an EOIR punch card on the bench: one beating recorded; four additional beatings required before the presumption of future persecution becomes available.

The tribal-protection portion of the decision raises a related concern. There are legitimate reasons a state may permit customary or tribal institutions to resolve internal disputes. But when the question is whether the state can or will protect a particular person from persecution, deference to a nonstate mechanism cannot become a talisman. What matters is whether protection is actually available and effective in the individual case.

A government may call something “tribal dispute resolution.” The person being hunted may have another name for it.

11. Matter of H-L-S-M-, 29 I&N Dec. 767 (BIA 2026): The Government Tried to Stop the Gangs, and Apparently Effort Deserves a Participation Trophy

Matter of H-L-S-M- deserves particular attention from CAT practitioners.

The applicant had cooperated with U.S. law enforcement against gang members and feared torture if removed to Mexico or Guatemala. The Immigration Judge relied on country evidence and expert testimony regarding corruption in finding CAT protection warranted. The Board reversed, emphasizing individualized considerations including the absence of past torture, the passage of time, and the vague or indirect nature of threats.

Those are legitimate considerations under the CAT framework. General country conditions cannot substitute entirely for proof that this particular applicant is more likely than not to be tortured.

The more alarming part of the decision concerns acquiescence. The Board held that the applicant failed to establish likely governmental acquiescence where the record showed that elements within the governments had taken action against criminal organizations, even though those efforts had not been effective.

That proposition threatens to turn governmental effort into a participation trophy.

The relevant inquiry cannot simply be whether some component of the state opposes organized crime in the abstract. Governments are not single sentient organisms. A federal police unit can arrest gang members while local officers accept bribes from the same gang. Prosecutors can bring cartel cases while municipal officials provide information about witnesses. A president can publicly condemn organized crime while individual security officials turn a blind eye to torture.

The existence of governmental efforts is relevant evidence. It should not become a shortcut around the harder question of whether public officials would acquiesce in the torture of this particular person.

Otherwise the inquiry begins to sound absurdly simple: Did the anti-gang program prevent the threatened torture? No. Is corruption still widespread? Yes. Are criminal organizations still capable of operating through public officials? Yes. Has somebody in government nevertheless tried to fight them?

Excellent. No acquiescence.

CAT deserves better than a gold star for governmental effort.

12. Matter of A-G-O-F-, 29 I&N Dec. 772 (BIA 2026): A Child Was Drugged and Raped, but Please Tell Us More About the Government Programs

Matter of A-G-O-F- contains the kind of facts that make the abstraction of asylum doctrine particularly difficult to stomach.

The lead respondent suffered severe abuse as a child, including being drugged and raped by two men. The Immigration Judge granted humanitarian asylum. The Board reversed.

Among its holdings, the Board concluded that “Brazilian children” and “abandoned Brazilian children” were not sufficiently particular social groups. It further held that the Immigration Judge clearly erred in finding the Brazilian government unable or unwilling to control the perpetrators, noting that one perpetrator had been arrested in connection with other crimes, that the respondent had not established why another perpetrator remained at large, and that Brazil provided services intended to protect abused children.

Those facts are certainly relevant. A functioning prosecution, effective protective services, and evidence of governmental response can defeat an unable-or-unwilling claim.

The danger lies in confusing the existence of institutions with the availability of protection.

A child-protection agency can exist on paper while a child remains completely unprotected. A perpetrator can be arrested for unrelated conduct without the government ever responding effectively to the persecution at issue. A hotline, shelter, statute, police unit, or government ministry may demonstrate institutional capacity, or it may simply demonstrate that somebody once designed a program.

Pointing to the existence of protective infrastructure while the protection failed is the asylum-law equivalent of pointing at the fire extinguisher while the building burns.

The legal question is not whether Brazil has services for abused children in the abstract. It is whether, on the evidence presented, the state was unable or unwilling to protect this child from the harm he suffered.

The decision is also a bleak illustration of asylum law’s capacity to make severe human suffering disappear behind doctrinal classification. Nobody needs a judicial opinion to determine that drugging and raping a child is horrific. The legal inquiry instead becomes whether the victim was harmed on account of membership in precisely the right social group and whether the government’s failure occurred in precisely the legally cognizable fashion.

We have managed to convert refuge into a logic puzzle.

13. Matter of Orozco Becerra & Orozco Becerra, 29 I&N Dec. 600 (BIA 2026): They Are Children, but the Statute Has a Calendar

In Matter of Orozco Becerra, the respondents included minors who failed to appear for their hearing. The Immigration Judge administratively closed the proceedings. The Board held that, once DHS establishes proper notice and removability, the Immigration Judge lacks authority to administratively close the cases and must proceed under the statutory in absentia framework, including where the respondents are children.

The Board’s statutory argument is not frivolous. INA § 240(b)(5)(A) uses mandatory language, and adjudicators cannot simply rewrite statutes because their application produces harsh facts. The Board also notes the availability of statutory mechanisms for seeking rescission of qualifying in absentia orders.

The problem is what the formal theory of notice obscures about children.

Children generally do not maintain household mailing addresses. They do not control whether their parents update EOIR after moving. They do not open legal correspondence, arrange transportation to court, select counsel, understand scheduling notices, or independently decide whether to attend a master calendar hearing. The law necessarily routes these obligations through adults and then attributes the procedural consequence back to the child.

Once formal notice is satisfied, however, the machinery moves forward. The child may receive an in absentia removal order and later attempt to unwind it through the famously simple and forgiving process known as a motion to reopen immigration proceedings.

Presumably this can be handled during recess.

The case illustrates the peculiar cruelty of treating procedural notice as though it were synonymous with meaningful capacity to comply. A six-year-old can be legally notified of a hearing without possessing anything resembling adult control over whether she appears.

The statute may constrain what an Immigration Judge can do about that problem. It does not require us to pretend the problem is sensible.

14. Matter of Shentu, 29 I&N Dec. 595 (BIA 2026): The FBI Says You May Be Dangerous. Good Luck Proving the FBI Wrong From Detention.

Finally, Matter of Shentu concerns the weight given to an FBI Letterhead Memorandum identifying a respondent as a potential national-security risk in immigration bond proceedings. The Board held that the memorandum warranted significant weight.

There is nothing inherently irrational about considering credible national-security information in a custody determination. Courts would be derelict if they categorically ignored reliable evidence suggesting that release presents a serious danger.

The difficulty is epistemic and procedural. The government possesses the investigative apparatus. The government generates the security assessment. The government introduces the assessment into a proceeding in which the detained respondent carries a substantial burden. The Board then accords the government’s assessment significant weight.

The respondent, meanwhile, must somehow rebut a national-security judgment whose underlying investigative universe may be largely inaccessible to him.

That creates a magnificent little evidentiary circle. The FBI says you may pose a national-security risk. You deny posing one. The denial carries limited weight because, naturally, a person who posed such a risk might deny it. What evidence can you produce disproving the government’s assessment? Ideally, one supposes, you would obtain the FBI’s underlying investigative material and demonstrate why the FBI misinterpreted it.

One imagines the request: “Dear Federal Bureau of Investigation, please provide the sensitive investigative information necessary for me to prove that the Federal Bureau of Investigation’s assessment of me is mistaken. I remain in detention and appreciate your prompt attention.”

The issue is not whether the FBI deserves zero credibility. The issue is what procedural mechanism exists to meaningfully test a consequential executive-branch assessment when the respondent lacks anything approaching equivalent access to the underlying information.

A system in which one party possesses the evidence, characterizes the evidence, and then receives institutional deference for its characterization demands unusually careful scrutiny.

Shentu instead gives practitioners another reason to worry about just how heavy the respondent’s burden can become once the words national security enter the room.

These Decisions Are Not Random

It would be comforting to dismiss these cases as a miscellaneous collection of fact-bound respondent losses. That reading becomes increasingly difficult as they accumulate.

Across the particular-social-group cases, the Board is demanding greater abstraction and broader social recognition while continuing to police proposed groups for excessive breadth, excessive narrowness, circularity, and insufficient particularity. The result is a doctrinal architecture in which the target keeps moving while the Board assures everyone that a valid PSG theoretically exists somewhere.

In unable-or-unwilling cases, the existence of governmental programs, arrests, services, or enforcement efforts increasingly does substantial work even when the protection afforded to the individual was obviously inadequate. In CAT cases, governmental efforts against organized crime can undermine acquiescence even when those efforts have failed to suppress the organizations whose cooperation with public officials is precisely what the applicant fears.

The ACA decisions shift in the same direction procedurally. DHS may provide oral notice. It need not necessarily produce the complete implementing instrument. The Immigration Judge may not need to hold an evidentiary hearing where the respondent has not already developed sufficient individualized evidence. The government’s side of the proceeding becomes flexible at precisely the moment the applicant’s burden becomes anticipatory and exacting.

Elsewhere, family reunification can trigger a statutory good-moral-character bar. Nonpayment of an annual fee can extinguish asylum. Minor children can be placed into the in absentia machinery once formal notice has been satisfied. A national-security assessment generated by the government’s own investigative apparatus can receive significant weight against a detained respondent expected to rebut it.

Then Delcarmen-Lara arrives to tell everyone that using government-authorized advance parole really was a statutory “departure” all along.

The common thread is not simply “the government wins.” Some of these cases involve statutory language that genuinely constrains the Board, and serious criticism requires acknowledging that fact. The more important pattern is a jurisprudence increasingly comfortable with formal governmental compliance and increasingly demanding of individualized noncitizen compliance.

When the government has done something, the existence of the governmental act itself often carries substantial weight. It authorized a program. It arrested somebody. It created child-protection services. Some officials fight gangs. The FBI issued a memorandum. DHS orally stated its position.

When the noncitizen has done something, by contrast, the inquiry becomes mercilessly exact. Was the fee paid by the deadline? Was the social group formulated correctly? Was the danger sufficiently individualized before the hearing? Was the entire country shown to perceive the group? Was the beating severe enough? Was the government’s failure to protect proven in precisely the right way? Was the political opinion sufficiently tied to governmental authority?

This is asymmetry dressed in administrative vocabulary.

Nothing dramatic is happening, according to the opinions. The group is merely insufficiently particular. The beating merely does not rise to persecution. The government’s anti-gang efforts are merely ineffective. The notice is merely oral. The operating procedures are merely unnecessary. The evidentiary hearing is merely unwarranted. The asylum application is merely abandoned. The child was merely properly notified. The FBI memorandum merely deserves significant weight. The advance-parole trip was merely a departure.

At the end of all that moderation, someone gets deported.

Welcome to Immigration Law in 2026

Immigration lawyers are accustomed to bad precedent. We are accustomed to statutes drafted like cursed crossword puzzles and standards that change with the Attorney General, the circuit, the procedural posture, and occasionally what appears to be the phase of the moon. We are accustomed to explaining to clients that words such as “admission,” “conviction,” “child,” “departure,” and apparently “persecution” do not necessarily mean what competent speakers of English might reasonably expect them to mean.

What makes 2026 different is not simply the volume of restrictive decisions. It is the consistency of the direction in which the law is being pushed and the institutional bias that direction reveals.

Again and again, ambiguity is resolved against the noncitizen. Government evidence is credited generously while evidence offered by asylum seekers is parsed for insufficiency. Government efforts that demonstrably fail to protect people are treated as proof that protection exists. DHS receives procedural flexibility while respondents are held to unforgiving deadlines, evidentiary burdens, and technical requirements. A government’s statement may be enough; an applicant’s testimony requires corroboration. An oral motion may provide sufficient notice; a missed fee may extinguish asylum. A government program may demonstrate protection even when the person standing before the court was not protected by it. An FBI assessment may receive significant weight even when the detainee has little meaningful ability to test the information beneath it.

This is not neutrality producing unfortunate outcomes by coincidence. It is a system in which skepticism is distributed asymmetrically.

The noncitizen must prove more, explain more, anticipate more, document more, and survive more procedural traps. The government, by contrast, is repeatedly afforded presumptions of regularity, institutional credibility, procedural latitude, and the benefit of abstractions that somehow always seem to point toward the same result: denial.

That matters because the Board is not merely deciding individual appeals. It is manufacturing precedent that Immigration Judges and DHS attorneys will cite thousands of times in cases far removed from the facts that produced it. A narrow loss becomes a broad rule. A factual distinction becomes a doctrinal requirement. Language describing one inadequate record becomes a checklist imposed on the next hundred asylum seekers.

The bias therefore reproduces itself.

A Board decision does not remain confined to the respondent whose name appears at the top of the page. It becomes the government’s next motion to pretermit, the Immigration Judge’s next oral ruling, the next reason an applicant supposedly failed to carry a burden that did not exist six months earlier. What begins as a published decision becomes infrastructure.

That is why precision matters more now, not less. Practitioners should read the opinions themselves rather than accept the government’s characterization of them. They should preserve contrary circuit authority, statutory arguments, and constitutional objections. They should resist every attempt to transform fact-dependent holdings into categorical rules. They should build country-condition records with painful specificity, distinguish the existence of nominal government programs from evidence of actual protection, and insist that “some officials oppose gangs” is not remotely the same proposition as “public officials will not acquiesce in this applicant’s torture.”

They should also force adjudicators to identify exactly what rule they believe a precedent establishes and exactly where the opinion says it. A remarkable amount of terrible immigration law becomes substantially worse in the retelling, particularly when the person doing the retelling begins with the assumption that the immigrant is supposed to lose.

Most importantly, practitioners must keep making records. Bias thrives when assumptions go unnamed. Put the inconsistency on the record. Put the unequal evidentiary treatment on the record. Put the government’s unsupported assertion on the record. Put the overlooked testimony on the record. Put the contradiction between the Immigration Judge’s stated standard and the actual precedent on the record.

Today’s grotesque BIA precedent may be tomorrow’s petition for review, and federal courts cannot correct what the administrative record does not preserve.

At the current pace, there is every possibility that by next Thursday the Board will publish a decision holding that being chased across the border by a death squad constitutes voluntary departure, provided DHS submits a sufficiently confident oral motion explaining why.

The opinion will presumably conclude by observing that the respondent failed to establish otherwise.

On August 13, 2026, the Board of Immigration Appeals issued a major decision in Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), overruling Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). The new decision is a significant and, in our view, deeply troubling change in immigration law. For fourteen years, Arrabally held that a temporary trip taken pursuant to advance parole was not a “departure” for purposes of the three- and ten-year unlawful-presence bars in INA § 212(a)(9)(B). Now that rule has changed.

Under Delcarmen-Lara, leaving the United States pursuant to advance parole can constitute a “departure” for purposes of INA § 212(a)(9)(B)(i)(II).

That is bad law and bad policy. But it is also important not to overstate what the decision does.

Not every person who travels on advance parole has accrued unlawful presence. Not every person who once accrued unlawful presence is still within a three- or ten-year bar. And, critically, the BIA expressly made its new rule prospective.

For now, those distinctions matter enormously.

What Did the BIA Actually Hold?

INA § 212(a)(9)(B)(i)(II) generally makes a person inadmissible if the person:

1. accrued one year or more of unlawful presence during a relevant stay in the United States;
2. subsequently departed or was removed; and
3. again seeks admission within ten years of that departure or removal.

For more than a decade, Matter of Arrabally and Yerrabelly held that a temporary departure pursuant to advance parole was not the kind of “departure” contemplated by this statute.

The reasoning made practical sense. Advance parole is not an ordinary decision to abandon the United States. The federal government authorizes the travel in advance with the expectation that the person may return and continue pursuing an immigration benefit or other authorized purpose.

The Board itself explained in Arrabally that advance-parole travel was qualitatively different from an ordinary departure because it presupposed the person’s anticipated return to the United States.

In Delcarmen-Lara, the Board discarded that reasoning.

Its new analysis focuses heavily on the ordinary dictionary meaning of “depart”: essentially, to leave.

Because Congress did not expressly write an advance-parole exception into § 212(a)(9)(B), the Board concluded that leaving pursuant to advance parole is still a “departure.”

Why Delcarmen-Lara Is Such a Troubling Decision

There are legitimate reasons to criticize this decision beyond simply disliking its result.

It reduces a complicated immigration mechanism to a dictionary definition

The Board’s analysis treats the question largely as though “departure” can be understood by opening a dictionary and asking whether someone physically left the country.

But Arrabally recognized that immigration statutes operate within a much more complicated legal framework.

A person traveling with advance parole has gone to DHS, requested advance authorization to travel, disclosed the proposed departure to the government, obtained the government’s permission, and traveled within that legal framework.

Treating that government-authorized travel as legally indistinguishable from an ordinary departure ignores the very feature that makes advance parole unique.

The question was never whether the person’s airplane physically crossed the border.

Of course it did.

The real question was whether Congress intended that government-authorized, temporary travel to carry the same unlawful-presence consequences as other departures.

Arrabally said no.

Delcarmen-Lara says that unless Congress expressly created an exception, the Board will treat them the same.

That is an extraordinarily formalistic way to resolve a question with life-changing consequences.

The government authorizes the travel and then uses the travel against the immigrant

There is something fundamentally perverse about the result.

DHS can authorize a noncitizen to travel internationally through advance parole. Yet under Delcarmen-Lara, making the very trip the government authorized may become the event that triggers a ground of inadmissibility.

An approval of advance parole has never been a guarantee that no other inadmissibility issue exists. Immigration lawyers know that.

But Arrabally gave immigrants and attorneys a clear, precedential answer to one very specific question: the advance-parole trip itself would not trigger § 212(a)(9)(B).

The BIA has now removed that protection.

The result is not merely technical. It changes whether people can safely attend funerals, visit gravely ill relatives, pursue educational or professional opportunities, or travel for humanitarian reasons after receiving permission from the federal government to do so.

The BIA itself recognizes that people relied on the old rule

Perhaps the most revealing portion of Delcarmen-Lara is the Board’s retroactivity discussion.

The BIA acknowledges that Arrabally was longstanding precedent. It recognizes reliance on that precedent. And it recognizes that changing the rule imposes a significant burden and can alter adjustment-of-status eligibility.

Those considerations were serious enough that the Board refused to make the new rule retroactive.

That is important protection for people who already traveled.

But it also highlights the disruptive nature of the decision itself.

For fourteen years, immigrants made enormously consequential decisions based on a published BIA precedent. Attorneys advised clients based on it. Government agencies adjudicated cases under it.

The rule did not exist in some obscure policy memorandum that could disappear overnight.

It was a published precedent decision of the Board of Immigration Appeals.

Now the Board has simply decided that its former interpretation was wrong.

But Do Not Panic: Advance Parole Does Not Automatically Mean a Ten-Year Bar

This point is critical.

Some of the immediate discussion surrounding Delcarmen-Lara risks collapsing two completely different questions:

Question 1: Is advance-parole travel now considered a “departure”?

Under Delcarmen-Lara, going forward, potentially yes.

Question 2: Does that particular person actually have enough unlawful presence to trigger INA § 212(a)(9)(B)?

That requires an entirely separate analysis.

A person does not trigger the ten-year bar merely because they traveled on advance parole.

The person must first have accumulated one year or more of qualifying unlawful presence before the relevant departure.

And “unlawful presence” is a technical statutory concept. It is not synonymous with every period in which someone lacked lawful immigration status.

“Out of Status” Does Not Always Mean “Accruing Unlawful Presence”

This distinction is particularly important for DACA recipients.

USCIS expressly recognizes that deferred action does not confer lawful immigration status. But USCIS also states that a person generally does not accrue unlawful presence for inadmissibility purposes while deferred action is in effect.

USCIS explains this distinction directly in its DACA Frequently Asked Questions.

That means someone can technically lack lawful immigration “status” while nevertheless not accumulating unlawful presence for purposes of § 212(a)(9)(B).

Those are different legal concepts.

This matters enormously after Delcarmen-Lara.

For example, a DACA recipient who obtained DACA young enough and maintained continuous deferred action may have substantially less unlawful presence than someone might assume simply by looking at the number of years that person has lived in the United States.

Periods before age 18 also generally do not count toward § 212(a)(9)(B)’s unlawful-presence calculation.

There are also statutory exceptions and other circumstances in which particular periods may not count as unlawful presence.

So the correct question is not:

“Has this person lived in the United States without a green card for more than ten years?”

It is:

“Exactly how much statutory unlawful presence did this person accrue before the relevant departure?”

Those are very different questions.

Why This Is Especially Important for DACA Advance-Parole Travelers

Many of the people immediately worried about Delcarmen-Lara are DACA recipients.

But DACA cases illustrate precisely why lawyers cannot jump from “advance parole” to “ten-year bar.”

Imagine someone entered the United States as a young child.

Unlawful presence for § 212(a)(9)(B) generally does not accrue before age 18.

The person later receives DACA, and periods during which deferred action is in effect generally do not accrue unlawful presence for this purpose either.

Depending on the person’s age when DACA was first granted, renewal history, gaps, and other facts, that person may never have accumulated the one year of unlawful presence necessary to trigger § 212(a)(9)(B)(i)(II).

Another DACA recipient may have accumulated more than one year between turning 18 and receiving DACA.

Another may have had significant gaps between DACA periods.

Those three people could have completely different § 212(a)(9)(B) analyses despite all being “DACA recipients who traveled on advance parole.”

The dates matter.

And There Is Another Major Point: The Ten-Year Period Can Run While You Are Inside the United States

This is another issue that is frequently misunderstood.

The ten-year unlawful-presence bar does not necessarily require someone to spend ten years physically outside the United States.

The BIA already decided this question in Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023).

In Duarte-Gonzalez, the Board held that a person subject to the temporary bar under § 212(a)(9)(B) is not required to reside outside the United States during the ten-year period in order for that period eventually to expire.

The statutory clock runs from the relevant departure.

USCIS takes the same position in its Policy Manual guidance concerning INA § 212(a)(9)(B).

USCIS states that the three- or ten-year period continues running regardless of whether the person later returns to the United States during that period.

So consider this scenario:

A person accrued more than one year of unlawful presence.

The person departed the United States in 2014.

The person later returned and has remained in the United States.

If the relevant ten-year period began with the 2014 departure, that ten-year period may already have expired in 2024.

The fact that the person spent some or even all of those ten years physically in the United States does not, by itself, stop the clock under Duarte-Gonzalez.

That does not mean the person’s return was lawful or that no other ground of inadmissibility applies. An unlawful reentry, for example, may implicate the far more serious provisions of INA § 212(a)(9)(C), among other possible consequences.

But for the specific temporary inadmissibility period under § 212(a)(9)(B), residence outside the United States for the entire ten years is not required.

That can completely change the analysis in an individual case.

So Someone May Have Had a Ten-Year Bar and Already Finished It

Exactly.

This is why saying “Delcarmen-Lara means you triggered a ten-year bar” can be dangerously incomplete.

Suppose someone accrued one year of unlawful presence and then made a qualifying departure in 2013.

The ten-year period associated with that departure would ordinarily have run through 2023.

If more than ten years have now elapsed since that relevant departure, the person does not remain inadmissible under § 212(a)(9)(B)(i)(II) based on that old unlawful presence and departure merely because they spent the intervening period in the United States.

That was the essential issue in Duarte-Gonzalez.

The BIA held that the statute does not require the person to remain abroad while the ten years run.

So when reviewing a case after Delcarmen-Lara, lawyers need to determine at least:

1. Was there actually unlawful presence?
2. How much?
3. When was it accrued?
4. Was there a prior departure that already started a three- or ten-year clock?
5. Has that statutory period already expired?
6. Did a later entry create some different inadmissibility issue, particularly under § 212(a)(9)(C)?
7. Did the person subsequently accrue a new period of unlawful presence?
8. When did the advance-parole departure occur?

Without that chronology, there is no reliable answer.

What About People Who Already Traveled in Reliance on Arrabally?

This remains the most important piece of good news in an otherwise terrible decision.

The BIA expressly made Delcarmen-Lara prospective. The respondent herself had departed and returned pursuant to advance parole on January 1, 2024.

If the Board had applied its newly announced interpretation retroactively, that historical trip could potentially have been analyzed as a triggering departure. The Board refused to do so.

After considering the reliance interests created by Arrabally, the BIA stated that it would apply its new holding prospectively and declined to decide whether the respondent’s own 2024 advance-parole trip constituted a § 212(a)(9)(B) departure.

That is powerful language for people who completed advance-parole travel before August 13, 2026.

Did the BIA Just Retroactively Give Everyone Who Previously Traveled a Ten-Year Bar?

No.

That is not what the decision says.

Someone who completed advance-parole travel while Arrabally governed has a strong argument directly from Delcarmen-Lara itself that the new interpretation cannot be applied retroactively to that historical trip.

The respondent in this case is the clearest example.

Her travel occurred in 2024.

The BIA decided her case in 2026.

Yet it declined to apply its new rule to the 2024 trip because the holding is prospective.

What If My Adjustment Application Is Still Pending?

The fact that USCIS adjudicates an adjustment application after August 13, 2026 should not, standing alone, convert a completed pre-Delcarmen-Lara advance-parole trip into a departure under the new rule.

Again, Delcarmen-Lara itself involved later adjudication of earlier travel.

The respondent’s trip occurred more than two years before the precedent decision.

The Board nevertheless treated the prospectivity question based on the historical travel rather than simply applying whatever interpretation existed on the date it adjudicated her motion.

That is one of the strongest aspects of the opinion for people with pending cases.

What If I Have Advance Parole but Have Not Left Yet?

This is the group that needs immediate caution.

The rule changed on August 13, 2026.

A person considering a new advance-parole departure should no longer assume Arrabally prevents that trip from constituting a departure under § 212(a)(9)(B).

But even here, the answer is not automatically “do not travel.”

First determine whether the person has the requisite unlawful presence at all.

For some people, especially certain DACA recipients, the answer may be no.

For others, the relevant three- or ten-year period associated with an earlier departure may already have expired.

For still others, there may be substantial unlawful presence and no expired period, making future travel dramatically riskier under Delcarmen-Lara.

The analysis has to be individualized.

What If Someone Departed Before August 13 but Is Still Abroad?

This remains a difficult fact pattern.

Delcarmen-Lara strongly protects reliance on the former rule, and § 212(a)(9)(B) focuses expressly on the date of “departure or removal.”

But the respondent in Delcarmen-Lara had both departed and returned before the new decision.

The Board did not squarely decide what happens when the departure occurred while Arrabally controlled but the person had not yet returned when Delcarmen-Lara was issued.

That case deserves individualized analysis rather than categorical assurances.

The Bottom Line

Delcarmen-Lara is a harsh and unnecessary reversal of a rule immigrants and lawyers relied upon for fourteen years. It takes a sophisticated government-created travel mechanism and reduces the statutory question to the proposition that leaving means leaving. Worse, it allows the government to authorize someone’s travel and then potentially attach a severe immigration consequence to taking that authorized trip.

But panic is not legal analysis.

Advance parole alone does not create a ten-year bar.

The person must have actually accrued the necessary unlawful presence. Some people who lack lawful immigration status nevertheless do not accrue unlawful presence during particular periods, including periods of deferred action.

Some people never accumulated enough unlawful presence to trigger the ten-year bar at all.

And some people who once triggered § 212(a)(9)(B) may already have completed the three- or ten-year statutory period while physically present inside the United States, as the BIA held in Matter of Duarte-Gonzalez.

Finally, people who already completed advance-parole travel before August 13, 2026 have the extraordinarily important protection of Delcarmen-Lara‘s own retroactivity holding:

The new rule is prospective.

So before anyone concludes that an advance-parole traveler now has a ten-year bar, build the timeline.

Calculate the unlawful presence.

Identify every departure.

Determine whether a prior statutory period already ran.

Examine DACA and other periods during which unlawful presence may not have accrued.

And distinguish travel completed under Arrabally from travel contemplated after Delcarmen-Lara.

The Board may have made the law worse today.

That does not mean every person affected by advance parole suddenly became inadmissible.

Primary Sources

• Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026)
• Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012)
• Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023)
• INA § 212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B)
• USCIS Policy Manual: Effect of Seeking Admission Following Accrual of Unlawful Presence
• USCIS DACA Frequently Asked Questions

This article provides general information regarding a newly issued immigration precedent and does not constitute legal advice. Unlawful-presence calculations and grounds of inadmissibility are highly fact-specific. A person considering international travel should obtain individualized advice based on their complete immigration history.

There is something almost admirable about the Trump administration’s capacity to make parody obsolete.

After a year in which immigration adjudication has become increasingly punitive, increasingly hostile to relief, and increasingly comfortable with executive power, the Department of Justice has now proposed giving Immigration Judges the ability to initiate civil monetary penalties for “contemptuous” conduct by private lawyers, accredited representatives, respondents, and nongovernment witnesses.

Among the conduct EOIR proposes to punish is “abusive language” in court filings, including language that “impugns the integrity of the court” or “unfairly maligns the competence or impartiality” of the presiding Immigration Judge.

You truly have to admire the craftsmanship.

First, construct an immigration adjudication system housed inside the Department of Justice, staffed by judges employed by the Attorney General, with government prosecutors appearing before government adjudicators in proceedings controlled by the executive branch.

Then make that system increasingly hostile to immigrants.

Then propose fining the private lawyers who become too impolite when describing what they are watching happen.

This is not judicial independence. This is the administrative state demanding that defense counsel compliment the décor while the building is on fire.

The proposal is officially titled “Civil Money Penalty for Actions in Contempt of an Immigration Judge’s Proper Exercise of Authority.” DOJ published it on July 30, 2026. Comments are due September 28, 2026, at 11:59 p.m. Eastern Time.

Everyone who practices immigration law should read it.

Then everyone who practices immigration law should comment on it.

Preferably in language that is still free while supplies last.

EOIR Would Like You to Respect the Court. Please Do Not Ask Who Employs the Court.

There is a legitimate proposition buried beneath this mess, which is what makes the proposal more insidious rather than less.

Judges need authority to control proceedings. Lawyers should not threaten people in court. They should not scream over judges, deliberately refuse lawful orders, repeatedly fail to appear without good cause, falsify evidence, or turn hearings into professional wrestling events. Courts require order, and contempt authority is not inherently sinister.

Congress itself authorized Immigration Judges, under regulations prescribed by the Attorney General, to sanction contemptuous conduct by civil monetary penalty nearly three decades ago. EOIR therefore did not invent the underlying statutory authority last Tuesday after somebody became annoyed by an especially spicy brief.

The constitutional problem lies in how DOJ now proposes to define and wield that authority.

The proposed rule reaches “disorderly or abusive behavior or language” in and around proceedings and “abusive language in any filing.” Its examples include language that “impugns the integrity of the court” or “unfairly maligns the competence or impartiality” of an Immigration Judge.

Those phrases should make every litigator’s constitutional antenna stand straight up.

What does it mean to “impugn” the integrity of a tribunal when the lawyer’s actual legal argument is that the tribunal acted improperly?

What constitutes “unfairly” maligning an Immigration Judge’s impartiality when the issue being preserved for appellate review is actual or apparent bias?

Who determines when a forceful allegation of prejudgment becomes improper criticism?

The Immigration Judge?

Marvelous.

The government proposes to put lawyers in the position of arguing that the adjudicator was biased while simultaneously calculating whether saying so too emphatically might provoke the adjudicator into initiating a monetary sanction.

Nothing promotes fearless advocacy quite like asking counsel to perform a running First Amendment risk assessment before typing the sentence, “The Immigration Judge demonstrated bias.”

Perhaps practitioners will need a new boilerplate paragraph:

Respondent respectfully, deferentially, humbly, reverently, and with nothing but admiration for the extraordinary wisdom of this tribunal, submits that the Immigration Judge appears to have decided the case before counsel opened her mouth.

There. Professionalism restored.

“Unfairly Maligns” Is Doing an Astonishing Amount of Work

The phrase “unfairly maligns” deserves particular ridicule because it is almost comically ill-suited to a monetary-penalty regulation governing advocacy.

“Knowingly false” has meaning.

“Threatening” has meaning.

“Obstructive” has meaning.

“Repeatedly refuses to comply with a lawful order” has meaning.

Even “reckless disregard for truth” has a substantial body of law behind it.

“Unfairly maligns,” by contrast, sounds like something a Victorian headmaster says after discovering an unflattering caricature of himself in the school newspaper.

It is not difficult to understand why that kind of wording creates First Amendment concerns.

The Supreme Court has repeatedly recognized that lawyers do not surrender all First Amendment protection by joining the bar. In Gentile v. State Bar of Nevada, the Court held that Nevada’s application of an attorney-speech rule violated the First Amendment and specifically identified concerns about vagueness and selective enforcement where lawyers lacked adequate notice of what speech was prohibited. At the same time, Gentile also recognizes that attorney speech connected to ongoing proceedings may be regulated more than ordinary public speech when sufficiently important adjudicative interests are at stake. That is precisely why drafting matters. A government wishing to regulate lawyers’ speech needs standards considerably more disciplined than “do not malign us unfairly.” (Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991))

That is not a technical quibble. Vagueness becomes especially dangerous when a rule regulates criticism of the very official who can initiate the sanction.

If the dividing line between permissible advocacy and punishable contempt depends upon whether an Immigration Judge believes criticism of the Immigration Judge was “unfair,” the chilling effect is not some fanciful law-review hypothetical.

It is the obvious result.

A lawyer facing a potential personal monetary penalty may soften an accusation of bias.

She may omit it.

She may characterize an obvious due-process problem as merely “concerning.”

She may decide that preserving an argument for the court of appeals is not worth antagonizing the adjudicator who controls both her client’s case and the initiation of sanctions against her.

The speech does not need to be formally prohibited for the government to suppress it.

Sometimes all the government needs to do is make speaking expensive.

Please Enjoy the First Amendment, but Not Too Enthusiastically

The First Amendment problem here should not be overstated into the claim that lawyers possess an unlimited constitutional right to say absolutely anything in court filings.

They do not.

Courts may regulate genuine disruption. Lawyers may be sanctioned for knowingly false statements, frivolous filings, threats, obstruction, and other conduct incompatible with the administration of justice. Attorney speech receives constitutional protection, but lawyers also occupy a regulated professional role.

That makes the weakness of this proposal more embarrassing.

DOJ had every opportunity to write a narrow regulation targeting conduct that actually interferes with adjudication.

Instead, it decided to wander into the ideological swamp of whether advocacy “impugns” the court or “unfairly maligns” an Immigration Judge’s competence or impartiality.

Those are not merely conduct regulations. They implicate viewpoint and content.

A lawyer who writes, “The Immigration Judge carefully considered the evidence,” plainly has no problem.

A lawyer who writes, “The Immigration Judge repeatedly interrupted Respondent’s testimony, misstated the record, adopted DHS’s factual assertions without evidentiary support, and demonstrated prejudgment” may suddenly need to wonder whether she has crossed from zealous representation into actionable disrespect.

The distinction turns on criticism.

That should bother anyone who remembers why the First Amendment exists.

The Constitution does not protect criticism of government because government enjoys being criticized. It protects criticism because government has power.

A rule that becomes most dangerous precisely when a lawyer accuses a government adjudicator of misusing government power has managed to misunderstand the First Amendment at almost architectural depth.

And Then Comes the Punchline: Government Lawyers Are Exempt

Now we reach the part where satire gives up and goes home.

The proposed civil-money-penalty regime does not apply to federal attorneys acting in their official capacities.

DOJ acknowledges that expressly. Government lawyers appearing in Immigration Court would remain subject to their employing agencies’ disciplinary systems instead. EOIR explains that it is reluctant to create a regime in which one executive agency imposes monetary penalties on lawyers employed by another executive agency.

How touching.

The institutional modesty arrives exactly where it benefits the government.

Apparently it would be inappropriate for one component of the executive branch to impose direct monetary sanctions on another component of the executive branch.

A private immigration lawyer, however?

Get your wallet.

The result is an almost exquisitely authoritarian asymmetry.

DHS counsel and respondent’s counsel stand in the same courtroom, litigating the same case before the same Immigration Judge. Both are capable of disruptive conduct. Both are capable of disrespect. Both are capable of misrepresenting facts. Both are capable of behaving abusively. Both are lawyers.

Only one side would be personally exposed to this particular civil monetary penalty regime.

Guess which one.

The prosecutor works for the government.

The judge works for the government.

The disciplinary architecture governing the prosecutor remains inside the government.

The private lawyer challenging the government receives the special financial deterrent.

But please, tell us more about impartiality.

The Ministry of Professional Tone Has Thoughts About Your Brief

The deeper problem is that authoritarian systems rarely announce themselves by publishing a regulation titled “RULE FOR SILENCING DISSENTING LAWYERS.”

They speak instead in the soothing vocabulary of order, decorum, institutional integrity, efficiency, and professionalism.

Nobody is censoring you. We are merely maintaining respect.

Nobody is punishing criticism. We are merely sanctioning abuse.

Nobody is suppressing allegations of bias. We are merely preventing lawyers from unfairly maligning impartial adjudicators.

Nobody is asking you to shut up.

We are simply attaching a several-thousand-dollar incentive to your choice of adjectives.

That is how the language works.

The rule does not need to prohibit the sentence “this Immigration Judge was biased.” It merely needs to make the lawyer wonder whether writing it will create a second proceeding in which the lawyer herself becomes the accused.

That is enough to alter advocacy.

It is enough to make younger lawyers cautious.

It is enough to make solo practitioners calculate whether a righteous objection is worth a financial sanction.

It is enough to make lawyers representing unpopular clients less willing to accuse a government tribunal of exactly the misconduct appellate courts may later need to review.

That chilling effect is not incidental to the constitutional problem.

It is the constitutional problem.

You Cannot Demand Deference to Impartiality While Making Impartiality Dangerous to Question

There is also something profoundly unserious about a system demanding extraordinary rhetorical respect for the “impartiality” of Immigration Judges while those judges remain executive-branch employees subject to the authority of the Attorney General.

Immigration Courts are not Article III courts. Immigration Judges are attorneys appointed by the Attorney General as administrative judges within EOIR, itself a component of DOJ.

That structural fact does not establish that any individual Immigration Judge is biased. Many Immigration Judges have spent their careers trying conscientiously to adjudicate extraordinarily difficult cases inside a deeply dysfunctional system.

It does, however, make independence and impartiality legitimate subjects of public and legal scrutiny.

You cannot build an adjudicatory system inside a cabinet department and then act scandalized when lawyers discuss the institutional consequences of building an adjudicatory system inside a cabinet department.

You especially cannot make the legitimacy problem disappear by fining people who describe it impolitely.

That is not how legitimacy works.

If a judiciary wants the public to believe it is impartial, the traditional method is being demonstrably impartial.

The new proposal appears to experiment with another method: regulating the vocabulary available to people who think it is not.

There Is a Word for Government That Becomes Increasingly Hostile to Criticism of Government

People understandably argue about the word fascism. It is historically loaded, frequently abused, and often reduced in American political discourse to a sophisticated synonym for “thing I dislike.”

So let us be precise about what is objectionable here.

A government adjudicatory apparatus proposes to give its own adjudicators financial-sanction machinery over private participants. The language reaches criticism bearing directly on the competence, integrity, and impartiality of those adjudicators. Government advocates appearing opposite those private participants are exempt from the same mechanism. The resulting threat falls most heavily on the people whose professional obligation is to challenge executive power on behalf of individuals the executive branch is trying to remove.

One can debate labels.

The structure is authoritarian.

The instinct is authoritarian.

The notion that institutional authority deserves protection from harsh criticism by the people subjected to that authority is authoritarian.

And dressing the whole arrangement in the language of courtroom civility does not cleanse it. Authoritarianism with excellent table manners remains authoritarianism.

If DOJ dislikes that characterization, I have wonderful news.

Under the First Amendment, it is still allowed to dislike things.

The Rule Also Contains Actual Contempt Provisions, Which Makes the Speech Provision Even Harder to Defend

The proposal already identifies conduct that looks substantially more like traditional contempt: repeated failures to appear without good cause, repeated failure to obey filing orders, disruptive conduct, and other forms of interference with proceedings.

That is precisely why the speech language deserves scrutiny.

If the objective is to make sure Immigration Judges can run functioning courtrooms, DOJ can regulate conduct that prevents Immigration Judges from running functioning courtrooms.

If the objective includes ensuring that Immigration Judges do not have to endure severe criticism of their competence or impartiality, we have left ordinary courtroom administration and entered considerably more dangerous constitutional territory.

Judges are powerful public officials.

Criticism comes with the furniture.

Sometimes that criticism will be unfair.

Sometimes it will be overstated.

Sometimes an appellate court will decide that an allegation of bias was unsupported.

That is not the same thing as contempt.

The appropriate response to a bad legal argument is ordinarily to reject the argument.

The appropriate response to an unsupported accusation is to explain why the record does not support it.

The appropriate response to harsh but constitutionally protected criticism of government is not to create a billing schedule.

The Proposed Procedure Does Not Magically Cure the Speech Problem

DOJ does include procedural protections. An Immigration Judge generally would issue a warning before initiating the civil-money-penalty process. The Immigration Judge would then issue a notice of intent, and the proposed structure involves review by the Chief Immigration Judge and an appellate process before the BIA.

Those safeguards matter.

They do not answer the underlying question.

A beautifully administered unconstitutional speech restriction remains a speech restriction.

The existence of appellate review also offers limited psychological comfort when the appeal runs through the same executive-branch adjudicatory structure whose institutional criticism created the controversy in the first place.

One can imagine the caption already:

Matter of Lawyer Who Hurt Our Feelings.

The Board respectfully concludes that criticism of the Immigration Judge’s impartiality was unfair.

The lawyer respectfully pays $3,500.

Institutional confidence restored.

Immigration Lawyers Have an Ethical Obligation to Say Uncomfortable Things

This proposal also collides with the actual function of lawyers.

Counsel is not courtroom decorative foliage.

A lawyer representing a person facing removal has an obligation to identify legal error, preserve appellate issues, challenge unsupported governmental assertions, object to procedural unfairness, and, when the evidence warrants it, raise concerns about bias or prejudgment.

Sometimes doing that requires saying things an adjudicator would rather not hear.

“The court misunderstood the evidence.”

“The court denied a meaningful opportunity to present the claim.”

“The court applied a different evidentiary standard to DHS.”

“The court prejudged credibility.”

“The court demonstrated bias.”

Those statements are serious. Lawyers should not make them recklessly. They should ground them in the record and make them with professional discipline.

But the possibility that criticism might be wrong does not justify giving the criticized official vague monetary authority over the critic.

If anything, bias allegations require more breathing room, because the person with the power to punish the allegation is also the person whose conduct is being challenged.

That conflict should be obvious enough to fit on a bumper sticker.

Yes, You Can Comment on This. Please Do.

The proposed rule is not final.

EOIR is accepting public comments through September 28, 2026, at 11:59 p.m. Eastern Time. The docket is EOIR-2026-0100, and the rulemaking is identified as RIN 1125-AB02 / EOIR Docket No. EOIR-26-AB02.

You can submit a comment electronically through the official Regulations.gov docket.

And practitioners should not waste the opportunity by merely writing “THIS IS FASCIST BULLSHIT,” however emotionally satisfying that submission might be.

Administrative comments become part of the rulemaking record. A serious comment should identify the particular regulatory language being challenged and explain why it creates constitutional, statutory, practical, or ethical problems.

The strongest comments should address the vagueness of phrases such as “unfairly maligns”; the chilling effect on allegations of judicial bias and due-process violations; the risk of selective or viewpoint-based enforcement; the asymmetry created by excluding federal government counsel; the conflict between contempt authority and counsel’s obligation to preserve issues for review; the danger of allowing the adjudicator who is criticized to initiate sanctions against the critic; the adequacy of procedural safeguards; whether narrower alternatives could adequately address genuine courtroom obstruction; and the particular danger to solo practitioners, nonprofit lawyers, accredited representatives, and respondents who may lack resources to contest monetary sanctions.

In other words, drag them with Bluebook citations.

That is the professional way.

Respect Is Earned. Constitutional Silence Cannot Be Ordered.

The most offensive premise hiding inside this proposal is that confidence in adjudication can be protected by regulating criticism of adjudicators.

It cannot.

A tribunal earns legitimacy when it follows law, treats parties evenhandedly, creates a fair record, tolerates criticism, and explains its decisions.

A tribunal does not become more impartial because lawyers become more frightened of calling it partial.

A judge does not become more competent because the government establishes a monetary penalty for describing incompetence.

An institution does not acquire integrity by regulating the vocabulary people use to question its integrity.

That is not respect.

That is compelled deference wearing a robe.

Immigration lawyers already practice in a system in which the government writes the charging document, prosecutes the case, employs the adjudicator, controls detention, executes the removal order, and possesses vastly greater institutional resources than almost any respondent standing before the court.

The answer to that imbalance is not to give the same system a new financial weapon against the people whose job is to challenge it.

If EOIR genuinely wants courtroom order, it can punish obstruction.

If it wants accurate filings, it can punish knowingly false statements.

If it wants timely proceedings, it can address repeated unjustified failures to comply with orders.

But if it wants lawyers to stop saying that government adjudicators are biased, incompetent, or acting without integrity when the record provides a good-faith basis to say exactly that, DOJ has wandered out of courtroom administration and directly into the First Amendment.

And perhaps the most American response available is the simplest one:

With all the respect the Constitution requires, I hold this proposal in profound contempt.

Fighting Unlawful Immigration Detention in 2026

Federal court is supposed to be where a person can turn when the government has exceeded its lawful authority. In 2026, that principle has become an urgent part of Lal Legal’s daily work.

In the first seven months of this year, attorney Prerna Lal has served as counsel in more than 50 federal immigration matters, including emergency habeas corpus petitions, motions for temporary restraining orders and preliminary injunctions, Administrative Procedure Act challenges, mandamus actions, enforcement proceedings, attorney-fee litigation, and an appeal before the United States Court of Appeals for the Ninth Circuit.

Many of these cases began with the same fundamental problem: Immigration and Customs Enforcement took away a person’s liberty without first providing meaningful notice or an opportunity to be heard. Some clients were arrested or re-arrested after years of living openly in their communities. Others had previously been released by the government and had complied with every reporting requirement imposed on them. Some had no criminal record. Some were DACA recipients, former TPS holders, asylum seekers, trafficking survivors, or applicants with humanitarian immigration relief pending. One was suffering from end-stage renal disease and required dialysis three times a week.

The government often treated these differences as though they did not matter. We went to federal court because they did.

Dozens of People Released from ICE Custody

The results have been extraordinary. Lal Legal’s 2026 federal detention docket has already produced more than 30 immediate-release or release-producing outcomes, along with numerous orders requiring bond hearings or other constitutionally adequate procedures.

In Majano Mendoza v. Andrews, No. 1:26-cv-01976-DAD-CSK, the Eastern District of California ordered the immediate release of a former TPS holder. The court accepted an argument developed in the habeas petition concerning the constitutional significance of the liberty the government had previously authorized him to enjoy.

In Vilcape Garate v. Chestnut, No. 1:26-cv-01472-DAD-SCR, the court ordered the petitioner released only days after the emergency habeas case was filed.

In Calderon Estrada v. Murray, No. 1:26-cv-04052-MWJS, the district court granted relief and entered judgment after Lal Legal appeared as California federal counsel in a matter referred by an out-of-state immigration attorney.

And in Jimenez Perez v. Andrews, No. 1:26-cv-02422-DAD-AC, the court granted the habeas petition on July 16, 2026, ordered ICE to release the petitioner immediately, and imposed protections against future re-detention without the procedures required by the court.

These were not isolated results. Federal litigation also produced release outcomes for petitioners in Lemus Perez, Barrios Ramos, Rivas Martinez, Cortez Lozano, Carrillo Hernandez, Corrales Villalobos, Quiroz Lopez, Perez Fombona, Almendarez Ruiz, Flores Arbizu, Espinoza Salas, Quiroz Martinez, Perez Velasquez, Rodriguez Morales, Velasquez Mazariegos, Vargas Escalante, Martinez Gabarette, Soberanis Cebrero, Zuniga Zuniga, Sohom Mas, Barrios Pena, Alvarado Cubias, Alvarez-Gonzalez, Montes Herrera, Urias, Texta Lopez, and Mejia Texta.

Every case depended on its own facts, procedural posture, assigned judge, and governing law. Past results never guarantee a future outcome. But taken together, these cases demonstrate what emergency federal litigation can accomplish when a person has been detained without constitutionally adequate process.

Winning More Than Physical Release

Release from a detention facility does not always end unlawful custody.

In Abdeltawab v. Armant, No. 5:26-cv-01520-MWF-DTB, Lal Legal obtained a preliminary injunction resulting in the petitioner’s release. ICE then placed him on electronic monitoring. Lal Legal returned to federal court and argued that the ankle monitor remained a form of custody and that its imposition frustrated the relief the court had already granted.

After briefing and a hearing, the court ordered ICE to remove the monitor. ICE complied. The case ultimately concluded with a judgment granting the habeas petition and restricting the government’s ability to re-detain the petitioner without appropriate process.

That result matters. Freedom is not merely the difference between being inside or outside a detention center. Government-imposed surveillance, movement restrictions, mandatory reporting, and the constant threat of re-arrest can substantially burden a person’s liberty. When ICE attempted to substitute one form of custody for another, we asked the court to enforce the relief it had ordered.

Bond Hearings and Meaningful Process

Other cases produced orders requiring the government to provide a bond hearing or another constitutionally adequate procedure. These matters include Segura Escobar, Anaya Flores, Parias Ramales, Munoz Juarez, Rojo Silvestre, Escobar De Leon, Vargas Cabrera, and Delgado-Lorenzana.

A bond hearing is not the same as release, and it should not be described as one. But it can require the government to justify continued incarceration before a neutral decision-maker instead of treating detention as an automatic consequence of immigration enforcement.

For a person who has been detained without an individualized assessment of danger or flight risk, that procedural protection can be critical.

Federal Counsel for Immigration Lawyers Nationwide

A growing part of this work comes from referrals by immigration lawyers outside California. Those lawyers often continue handling the client’s removal, asylum, bond, or immigration-benefits proceedings while Lal Legal evaluates and litigates the federal claim.

In these matters, Lal Legal does far more than provide a local address or enter a limited appearance. The work may include evaluating federal jurisdiction, identifying the proper custodian and respondents, developing the constitutional and statutory claims, drafting the petition and emergency motions, arranging service, briefing the case, appearing at a hearing, enforcing the resulting order, and pursuing attorney’s fees.

That model produced the release orders in Vilcape Garate, Majano Mendoza, and Calderon Estrada, as well as the release and electronic-monitoring victory in Abdeltawab. It also supports pending litigation in Valle v. LaRose, No. 3:26-cv-03731-LL-AHG, and Nolasco Ventura v. Semaia, No. 5:26-cv-03952-AYP.

Challenging Unlawful Agency Practices

Lal Legal’s federal practice is not limited to detention.

In Li et al. v. U.S. Citizenship and Immigration Services, No. 3:26-cv-05950-JD, Lal Legal filed an Administrative Procedure Act challenge to the government’s practice of issuing Notices to Appear charging adjustment applicants with overstaying while their timely filed applications remained pending. The case challenges the broader agency practice, not merely the outcome in a single application.

In Azizi et al. v. Noem, No. 2:24-cv-02959-JDP, Lal Legal represents Afghan nationals challenging prolonged agency inaction involving humanitarian immigration applications. The government produced the administrative records, and the parties’ summary-judgment motions are pending before the Eastern District of California.

In Magaña Baez et al. v. U.S. Citizenship and Immigration Services, No. 4:26-cv-00928-PHK, Lal Legal challenged the government’s treatment of the continuous-physical-presence documentation required for adjustment of status by T-visa recipients. After the lawsuit was filed and served, the Department of Justice issued corrected documentation addressing the deficiency USCIS had asserted and providing a basis to seek reopening. This litigation is ongoing.

These cases address a different form of government power: the ability to delay, deny, or destabilize a person’s immigration status through unlawful policies and unexplained agency action.

Taking Detention Issues to the Ninth Circuit

Some issues require appellate review.

In Lania v. Central Valley Annex, No. 1:26-cv-03701-DC-CSK, Lal Legal challenged immigration detention following an arrest where the underlying criminal charges were dismissed. The case raises fundamental questions about conditional liberty, pretextual detention, and whether an arrest alone can become a permanent justification for ICE custody even when the criminal system does not produce a conviction. An interlocutory appeal is pending before the Ninth Circuit as Case No. 26-4049.

Making the Government Pay the Fees the Law Requires

When a person prevails against the federal government and the government’s position was not substantially justified, the Equal Access to Justice Act may permit recovery of attorney’s fees and costs.

Courts have already awarded more than $21,000 in two completed 2026 fee matters arising from this litigation, including $14,297.83 in Rivas Martinez and $7,036.37 in Cortez Lozano. Additional EAJA applications are pending.

Fee recovery matters for more than the lawyers involved. It helps make emergency federal representation possible, reimburses eligible clients where appropriate, and reinforces the principle that individuals should not bear the entire financial cost of correcting unlawful government action.

Why We Keep Filing

Habeas corpus is called the Great Writ because it gives a person a means to challenge unlawful imprisonment. It is not a technical loophole, and it is not an abstract constitutional exercise. For the people and families involved in these cases, it can mean the difference between continued incarceration and coming home.

The volume of litigation this year is not a cause for celebration. Every case represents a person whom the government detained, a family thrown into crisis, and an emergency that should not have required federal intervention. The results are worth recognizing because they show that detention is not beyond judicial review and that government agencies remain bound by the Constitution and federal law.

Lal Legal will continue bringing these cases, working with immigration counsel throughout the country, and asking federal courts to enforce those limits.

If you or your client is detained by ICE, has been re-detained after previously living in the community, or may need emergency federal immigration litigation in California, contact Lal Legal to request a case evaluation.

This post discusses selected matters and is not an exhaustive list of Lal Legal’s federal litigation. Every case is different, and past results do not guarantee a similar outcome. The information provided here is general information and is not legal advice.

The battle over immigration detention has reached every federal courthouse in America

In the past six months, something remarkable has happened in federal courthouses across America. Immigration detainees filed over 15,694 habeas corpus petitions—an increase of 1,480% over the previous period. The Eastern District of California saw a 3,419% surge. The Southern District of Texas experienced a 2,088% increase, with more cases filed in January 2026 alone than in all of 2025.

Federal judges are scrambling.

The writ of habeas corpus has become the last line of defense against a massive expansion of immigration enforcement.

The Central Question: Which Detention Statute Applies?

The threshold question in virtually every immigration habeas case for persons not subject to a final removal order is whether the detained individual is held under 8 U.S.C. § 1225(b) (mandatory detention for “applicants for admission”) or 8 U.S.C. § 1226(a) (discretionary detention with eligibility for bond).

The government has adopted an aggressive interpretation: anyone who entered without inspection remains perpetually an “applicant for admission,” regardless of how many years they have lived in the United States. Under this theory, even someone who arrived as a child and has resided here for decades is treated as if they are still standing at the border, seeking entry for the first time.

California federal courts have overwhelmingly rejected this interpretation.

The Majority View in California

In Velasquez v. Warden, No. 1:25-cv-1818 CSK P, slip op. at 6 (E.D. Cal. Feb. 23, 2026), the court held: “The Court agrees with and joins the majority of courts nationwide, including the Eastern District of California, in rejecting respondent’s new interpretation of Sections 1225 and 1226.” Similarly, in J.S. v. Wofford, No. 1:25-cv-02016 DC SCR, slip op. at 6 (E.D. Cal. Jan. 16, 2026), the court found: “The undersigned follows Labrador-Prado and the majority view in finding that the applicable statute governing Petitioner’s detention is § 1226(a), not § 1225(b)(2).”

The Central District of California reached the same conclusion in Maldonado Bautista v. Santacruz, No. 5:25-CV-01873-SSS-BFM, 2025 WL 3288403, at *9 (C.D. Cal. Nov. 25, 2025), certifying a nationwide class and holding that noncitizens who entered without inspection and were not apprehended at the border are detained under § 1226(a).

Why the Government’s Interpretation Fails

As the Eastern District of Virginia explained in a decision cited favorably by California courts, the government’s interpretation:

“(1) disregards the plain meaning of section 1225(b)(2)(A); (2) disregards the relationship between sections 1225 and 1226; (3) would render a recent amendment to section 1226(c) superfluous; and (4) is inconsistent with decades of prior statutory interpretation and practice.”

Campos-Flores v. Bondi, No. 3:25-cv-797, slip op. at 8 (E.D. Va. Dec. 2, 2025), quoted in Lepe v. Andrews, No. 1:25-cv-01163, slip op. at 4 (E.D. Cal. Sept. 23, 2025).

Section 1225(b)(2)(A) applies to noncitizens “seeking admission”—those actively presenting themselves at the border or recently apprehended just after entry. Once an individual has been released into the interior and formed “enduring attachments of normal life,” they are no longer “seeking admission.” See Hernandez Lazo v. Noem, No. 2:25-cv-6639 (NJC), slip op. at 22 (E.D.N.Y. Feb. 4, 2026) (“Mr. Hernandez Lazo cannot be ‘seeking admission’ because he clearly is not presenting himself at the border and was not recently apprehended just after entering this country.”).

II. Protected Liberty Interests and the Requirement of Changed Circumstances

Once the government releases a noncitizen—whether through parole, an Order of Recognizance (OREC), Temporary Protected Status (TPS), deferred action, or simply by permitting years of uninterrupted residence—that individual acquires a constitutionally protected liberty interest in remaining free.

The Morrissey Principle

In Morrissey v. Brewer, 408 U.S. 471, 482 (1972), the Supreme Court held that conditional liberty “includes many of the core values of unqualified liberty” and that termination of that liberty “inflicts a ‘grievous loss'” entitled to due process protection. The parolee “has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions.”

California federal courts have applied this principle to immigration release. As the Eastern District held in Mendoza v. Warden, No. 1:25-cv-2030 CSK, slip op. at 9-10 (E.D. Cal. Feb. 5, 2026), the duration of a noncitizen’s conditional release “elevates and underscores his interest in liberty” under Morrissey and Mathews. In Altin v. Chestnut, No. 1:26-cv-00792-DC-CSK, slip op. at 10-11 (E.D. Cal. Feb. 5, 2026), the court held that two years out of custody as an exclusive financial provider for family, with work authorization and community ties, created a “powerful interest” in continued liberty.

The Changed Circumstances Requirement

Where the government has made an affirmative, individualized finding that a noncitizen poses no danger and is not a flight risk—whether through an OREC, TPS grant, deferred action, or termination of proceedings—it cannot re-detain that individual without demonstrating materially changed circumstances.

In Prior v. Chestnut, No. 1:25-cv-01131-JLT-EPG-HC, 2026 WL __, at *15-16 (E.D. Cal. Feb. 5, 2026), the court emphasized: “Respondents have not argued nor identified a change in circumstance.” In Mendoza, slip op. at 2 n.3, 9, the court similarly emphasized the government’s failure to contend that the petitioner violated release conditions or that circumstances had changed.

The Central District has applied this principle to SIJS recipients with deferred action. In A.R. v. Noem, No. 5:25-cv-03565 (C.D. Cal. Jan. 26, 2026), the court held that an SIJS recipient with deferred action “could not have had his deferred action status revoked without due process.” The Eastern District reached the same conclusion in Forsah R-Z v. Noem, No. 1:26-cv-00828 (E.D. Cal. Feb. 5, 2026), holding that “deferred action . . . is sufficient on its own to grant the Petition.”

III. Procedural Due Process and the Mathews Factors

Where a noncitizen possesses a protected liberty interest, the court applies the three-factor test established in Mathews v. Eldridge, 424 U.S. 319, 335 (1976): (1) the private interest affected; (2) the risk of erroneous deprivation under existing procedures; and (3) the government’s interest.

The Private Interest

“Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). California courts have consistently held that this factor weighs heavily in favor of petitioners. See Mendoza, slip op. at 9-10; Altin, slip op. at 10-11.

The Risk of Erroneous Deprivation

The risk is “high” when a petitioner has not received a bond hearing. Mendoza, slip op. at 9. In cases involving revocation of deferred action or TPS, the risk is “extraordinarily high” where the government provides no pre-deprivation process. A.R., slip op. at 11-13. As the Eastern District noted in Forsah R-Z, slip op. at 3, “the risk of erroneous deprivation is high as there has been no evidence presented or determination made that Petitioner presents a risk of dangerousness or flight.”

The Government’s Interest

The government’s interest in detention without process is “low” where it previously deemed the petitioner safe and shows no changed circumstances. Mendoza, slip op. at 9; Prior, slip op. at 15-16. In SIJS cases, courts have found the government’s interest “further diminished” where the petitioner has no criminal convictions, complied with all conditions, and appeared for all required proceedings. A.R., slip op. at 14; Forsah R-Z, slip op. at 3.

IV. The Burden of Proof: Clear and Convincing Evidence

When a petitioner has been previously released—whether through OREC, TPS, deferred action, or parole—the government bears the burden of justifying re-detention. California courts have uniformly required that the government meet this burden by clear and convincing evidence.

In Mendoza, slip op. at 10, the court ordered a hearing at which the government must prove flight risk or danger “by clear and convincing evidence.” Accord S.L. v. Wofford, No. 1:26-cv-00522-TLN-EFB, slip op. at 8 (E.D. Cal. Feb. 5, 2026); Prior, slip op. at 14 (collecting cases requiring clear and convincing evidence).

The immigration judge’s contrary requirement—that the petitioner bear the burden of proving they are not a danger or flight risk—is “constitutionally insufficient.” Prior, slip op. at 14.

V. Substantive Due Process: Detention Must Serve a Legitimate Purpose

Substantive due process requires that civil detention bear a “reasonable relation” to a nonpunitive purpose. Jackson v. Indiana, 406 U.S. 715, 738 (1972). The Supreme Court has recognized only two permissible purposes for immigration detention: ensuring appearance at proceedings and preventing danger to the community. Zadvydas, 533 U.S. at 690-92; Demore v. Kim, 538 U.S. 510, 519-20, 527-28 (2003).

Where the government cannot demonstrate that detention serves either purpose, the detention is arbitrary and violates substantive due process. As the Eastern District held in S.L., slip op. at 3-4, detention violates substantive due process where the petitioner “is neither a danger nor a flight risk, which is evidenced by Respondents previously releasing him from custody.”

VI. Special Protections for Vulnerable Populations

SIJS Recipients and the TVPRA

The Trafficking Victims Protection Reauthorization Act (TVPRA) reflects Congress’s determination that unaccompanied children who have been abused, abandoned, or neglected warrant special protections, including placement in the “least restrictive setting” and consideration for relief from removal. 8 U.S.C. § 1232(c)(2)(A)-(B).

Federal courts have recognized that SIJS recipients with deferred action are entitled to heightened protections. In A.R., slip op. at 7-8, the Central District granted a TRO and ordered immediate release for an SIJS recipient with deferred action, holding that § 1225(b) did not apply. In F.S.S.M. v. Wofford, No. 1:25-cv-01518, slip op. at 5 (E.D. Cal. Dec. 9, 2025), the court held: “Petitioner is not subject to mandatory detention under § 1225(b)(2) for several reasons. As an initial matter, Petitioner cannot be simultaneously subject to both § 1225(b)(2) and the TVPRA because their detention schemes are facially incompatible.”

TPS Holders and Long-Term Residents

Temporary Protected Status likewise reflects an affirmative determination by the government that the individual is admissible and poses no danger or flight risk. Hernandez Lazo, slip op. at 3. As the District of Minnesota held in Bah v. Cangemi, 489 F. Supp. 2d 905, 917 (D. Minn. 2007), “[The government] had the opportunity to detain [the petitioner] when they granted him TPS . . . or at any point in the subsequent years. They chose not to.”

Federal courts have extended this reasoning to long-term residents generally. In Velasquez, slip op. at 9, the court held that “petitioner’s time out of custody, even after his TPS was denied a year before he was detained by ICE, gave rise to a constitutionally protected liberty interest.”

VII. The Remedy: When Is Release Required?

Federal courts in California have ordered immediate release where detention is unlawful from its inception. In Hernandez Lazo, slip op. at 32, the court explained: “Mr. Hernandez Lazo’s detention was unlawful from its inception because ICE detained him under the wrong statute and without any notice or opportunity to be heard . . . ‘dispos[ing] of the matter as law and justice require,’ 28 U.S.C. § 2243, necessitates both release and narrow injunctive relief.”

In Gamarro Gamarro v. Noem, No. 26-cv-0650-GPC-DEB, slip op. at 7 (S.D. Cal. Feb. 10, 2026), the court held that “immediate release is the appropriate remedy in this case.” And in Vargas Sivira v. Noem, No. 1:25-cv-01987-KES-EPG-HC, slip op. at 8 (E.D. Cal. Jan. 28, 2026), the court ordered immediate release where “there is nothing before this Court demonstrating that Petitioner violated his conditions of release.”

In SIJS cases, the Central District ordered: “Respondents are ORDERED to release Petitioner from custody (and return to him his personal effects) within 48 hours.” A.R., slip op. at 16.

Where courts order bond hearings rather than release, they uniformly require that the government bear the burden by clear and convincing evidence. Oleksandr V.M. v. Warden of Golden State Annex, No. 1:25-cv-01431-JLT-EPG-HC, slip op. at 15 (E.D. Cal. Jan. 27, 2026) (“The undersigned recommends that the government must justify Petitioner’s continued confinement under § 1225(b) by clear and convincing evidence that Petitioner is a flight risk or a danger to the community.”).

Courts within the Fifth Circuit continue to grant habeas relief on procedural due process grounds using the familiar Mathews v. Eldridge balancing test. The three factors:

• The private interest: “The interest in being free from physical detention is the most elemental of liberty interests.”
• The risk of erroneous deprivation: The government’s refusal to provide bond hearings creates a high risk of error.
• The government’s interest: While the government has an interest in ensuring appearance at hearings, that interest “would be squarely addressed through a bond hearing.”

As one court stated in Hassen v. Noem, the Fifth Circuit’s decision “does not change the case’s outcome on procedural due process grounds.”

3. Post-Final Order Detention Under Zadvydas

Under Zadvydas v. Davis (2001), detention beyond the 90-day removal period is unlawful if there is “no significant likelihood of removal in the reasonably foreseeable future.” But Gines Laguardia v. ICE (N.D. Iowa Feb. 2026) illustrates the limits: when a Cuban lawful permanent resident refused to cooperate with removal to Mexico, the court held that under 8 U.S.C. § 1231(a)(1)(C), the removal period is extended when an alien “conspires or acts to prevent the alien’s removal.” Because his extended detention resulted from his own failure to cooperate, his habeas petition was denied.

When the Government Disregards Court Orders

Perhaps most alarming: the government’s apparent disregard for judicial orders. In Chael v. Lyons (D. Colo. Mar. 2026), a federal judge acknowledged that the government violated his order by deporting Tesfami Chael to Germany while his habeas petition was pending. Senior Judge R. Brooke Jackson commended the government’s “candor about the mistake” but declined to order Chael’s return.

This was not isolated. The chief judge of Minnesota’s federal court chronicled at least 96 violations of judicial orders in January 2026 alone. Judges in Colorado have noted ICE’s “unjustifiable intransigence” in imposing unauthorized conditions on released detainees and confiscating identifying documents after court-ordered release.

Resources for Advocates

Several organizations have developed practical resources for habeas litigation:

• Centro Legal de la Raza provides habeas templates for individuals unlawfully re-detained following the Garro Pinchi v. Noem class action, which blocked the re-arrest of immigrants previously released after determinations that they were neither dangerous nor flight risks.
• Asian Law Caucus offers a toolkit for immigrants with unexecuted final orders of removal who have been re-detained after living in the community for many years—particularly critical for Southeast Asian refugees facing deportation to countries they fled as children.
• Texas Immigration Law Council (with RAICES and TCRP) published a comprehensive post-Buenrostro practice advisory, including a Mathews analysis template and lists of favorable cases within the Fifth Circuit.

As the Texas advisory reminds us: “All persons within the United States possess a cognizable, protectable liberty interest in freedom from physical restraint in the most basic constitutional sense, and habeas corpus remains the fundamental instrument for safeguarding that liberty.”

The Stakes

What we are witnessing is a high-stakes constitutional confrontation. The executive branch is detaining thousands without bond hearings, seeking to strip federal courts of jurisdiction, and in some cases, defying court orders when they issue.

The surge in habeas petitions, the judicial pushback against jurisdiction-stripping, and the troubling reports of government noncompliance all demonstrate that the writ remains—as it has been for centuries—the last line of defense against unlawful executive detention.

The question is whether the courts will continue to serve as that bulwark.

Our Work

Since the surge in immigration enforcement beginning in 2025, I have focused my practice on representing detained individuals in the Central and Eastern Districts of California, where I have litigated dozens of habeas corpus petitions challenging unconstitutional detention under 8 U.S.C. § 2241.

I am proud to have secured over 25 grants of habeas corpus relief, resulting in the immediate release of clients from detention facilities across California, including the California City Detention Center, Golden State Annex, Mesa Verde ICE Processing Center, and Adelanto ICE Processing Center. These victories have reunited families, restored individuals to their communities, and reaffirmed the fundamental principle that no person—citizen or noncitizen—may be deprived of liberty without due process of law.

My practice encompasses a wide range of habeas challenges:

• Statutory challenges to mandatory detention under 8 U.S.C. § 1225(b), securing bond hearings for clients detained under the correct statute, 8 U.S.C. § 1226(a)
• Procedural due process claims for individuals re-detained without notice or hearing after years of compliance with release conditions
• Substantive due process challenges to detention that serves no legitimate governmental purpose
• Special protections for vulnerable populations, including Special Immigrant Juvenile Status (SIJS) recipients, Temporary Protected Status (TPS) holders, and long-term lawful permanent residents
• Administrative Procedure Act claims challenging arbitrary agency action, including the summary termination of deferred action without explanation

I have also developed practical resources for advocates, including habeas templates and guidance for litigating these cases. You can access and adapt my habeas templates here:

• Habeas Corpus Petition (Immediate Release case)
• TRO Motion and TRO Brief

These resources reflect the arguments and strategies that have proven successful in California federal courts, and I share them in the hope of supporting other advocates fighting for their clients’ freedom.

Legal Disclaimer: The content provided in this blog post, including all text, graphics, images, and information, is for general informational purposes only and does not constitute legal advice. The law changes frequently and varies by jurisdiction. The information presented here may not reflect the most current legal developments, may be modified or updated without notice, and should not be relied upon as a substitute for consultation with qualified legal counsel. Reading this blog, commenting on it, or contacting the author does not create an attorney-client relationship. No attorney-client relationship is formed unless and until a written engagement agreement has been signed by both Lal Legal APLC and the prospective client. Please do not send confidential information to Lal Legal APLC unless and until an attorney-client relationship has been formally established.

In the face of intensified immigration enforcement across California and the nation, something remarkable is happening in our federal courts. Immigrants and their advocates are fighting back and winning.

Since the escalation of immigration enforcement beginning in early 2025, we have witnessed a surge in ICE operations targeting courthouses, homes, workplaces, and even schools . On some days, more than 200 people have been arrested in Southern California alone, overwhelming detention centers and funneling vulnerable individuals into overcrowded facilities . These tactics are designed to destabilize entire communities and intimidate immigrants into silence.

But here is the truth they don’t want you to know: Detention by ICE is not the end of the road. It is the beginning of a legal battle and you have powerful weapons at your disposal.

The writ of habeas corpus—our centuries-old protection against unlawful government detention—is alive and well in California’s federal courts. In just the past several months, we have seen extraordinary victories that demonstrate the power of legal resistance. This post will share those victories, explain your rights, and provide concrete steps for fighting unlawful ICE detention.

What is Habeas Corpus and Why Does It Matter for Immigrants?

Before diving into recent victories, let’s understand the tool being used to win them.

A petition for writ of habeas corpus (28 U.S.C. § 2241) is a legal filing that challenges the legality of a person’s detention. Unlike regular immigration proceedings, a habeas petition goes directly to federal district court and argues that your detention violates the Constitution or federal law .

For immigrants, habeas is essential because:

• It challenges unlawful detention, not just the fact of removal proceedings
• It provides access to federal court jurisdiction, which remains available even for immigrants in removal proceedings 
• It can challenge re-detention and prolonged detention without adequate bond hearings under the Due Process Clause of the Fifth Amendment 
• It can enforce statutory protections, such as the prohibition on detaining individuals with Temporary Protected Status (TPS) 

The Fifth Amendment’s Due Process Clause provides that “[n]o person shall be… deprived of life, liberty, or property, without due process of law.” And it is well established that the Fifth Amendment entitles noncitizens to due process of law in deportation proceedings.

Victory No. 1: Judge Orders Immediate Release After ICE Ignores Court Order

Court: Central District of California
Date of Order: February 18, 2026

The Facts: Client had been detained by ICE under circumstances warranting a bond hearing. On February 4, 2026, we obtained a Temporary Restraining Order requiring that ICE provide our client with an individualized bond hearing within seven days.

The Government’s Response: Nothing. ICE provided a bond hearing but the AUSA failed to inform the judge. The seven-day period lapsed, and our client remained in detention. When the judge checked the DHS Detainee Locator portal, she confirmed our client was still locked up in blatant violation of her order.

The Victory: On February 18, 2026, the judge issued a no-nonsense order:

“As such, the Court ORDERS Petitioner be released forthwith, but no later than February 18, 2026 at 5 P.M. Respondents are to provide the Court with confirmation of Petitioner’s release by February 18, 2026 at 11:59 P.M.”

The Message: When ICE ignores court orders, federal judges will not look the other way. Our client is now free.

Victory No. 2: Judge Grants Habeas, Orders Release with Strong Due Process Protections

Court: Eastern District of California
Date of Order: February 11, 2026

The Facts: Client entered the United States and was released pending her immigration proceedings. She complied with all check-ins and had no criminal record. Then, without notice or hearing, ICE re-detained her.

The Government’s Response: The government filed a two-page opposition that said, in its entirety: “We submit on our previous filing.” That’s it. No new facts. No new law. No new excuses.

We argued: “At this point, they’re basically sending the Court a strongly worded shrug.”

The Victory: The judge granted the Petition for Writ of Habeas Corpus, holding:

1. Our client has a protected liberty interest because her prior release created “an implicit promise” that her liberty would not be revoked without cause.
2. The risk of erroneous deprivation is high because she received no hearing.
3. The Government’s interest is low where removal is not imminent and she was not a flight risk or danger.

The court didn’t just order release—it enjoined ICE from re-arresting our client absent:

• Seven days’ notice
• A pre-deprivation hearing
• A showing of changed circumstances
• Or clear and convincing evidence of danger or flight risk

The Impact: This is landmark language establishing powerful protections for anyone who has been released and later re-detained.

Victory No. 3: Judge Grants TRO, Converts to Preliminary Injunction

Court: Eastern District of California
Date of Order: February 17, 2026

The Facts: Our client entered the U.S., was detained briefly, and was released on parole. Months later, he attended a scheduled ICE check-in—and was re-detained without notice or hearing.

The Government’s Response: The government conceded the case was factually similar to prior cases where this judge had already ruled that due process requires a pre-detention hearing.

The Victory: The judge granted our motion, converted it to a preliminary injunction, and ordered:

“Respondents are ORDERED to immediately release petitioner… respondents are ENJOINED AND RESTRAINED from re-detaining petitioner for any purpose, absent exigent circumstances, without providing petitioner notice and a pre-detention hearing before an immigration judge.”

Notably, the judge also rejected a contrary Fifth Circuit decision, finding its reasoning “unpersuasive.”

The Message: California federal courts are standing firm on due process protections.

What These Victories Mean

Taken together, these three victories establish powerful precedent:

1. Prior Release Creates a Protected Liberty Interest

When the government releases someone, it creates an implicit promise that liberty will not be revoked without cause.

2. Re-Detention Requires Notice and Pre-Deprivation Process

You cannot simply detain someone when they show up for a check-in. Due process requires notice and a hearing beforehand.

3. The Government Bears the Burden

To re-detain someone, ICE must demonstrate either changed circumstances or clear evidence of danger or flight risk.

4. Courts Will Enforce Their Orders

When ICE ignores court orders, judges will order immediate release.

5. Statutory Appeals Don’t Suspend Constitutional Rights

Pending appeals in other cases do not justify delaying justice for individuals whose constitutional rights are being violated daily.

How to Fight Unlawful Detention: Resources and Action Steps

If you or someone you know is detained by ICE, here are concrete steps you can take.

1. Contact Rapid Response Networks Immediately

California has robust rapid response networks that provide real-time assistance when someone is detained. If the detention occurred within the last 24 hours, contact your local hotline immediately .

For Ventura County: Call the 805 Immigrant Rapid Response Hotline at 805-870-8855 or text “ALERTA” to receive real-time updates . You can also contact VC Defensa at 805-296-1119 to learn of possible ICE activity in your area .

For Los Angeles and Southern California: The Immigrant Defenders Law Network (ImmDef) operates a bilingual public hotline designed to give community members immediate access to legal support when someone is detained . Between June 2025 and January 2026, ImmDef coordinated resources and services for nearly 2,400 community members .

2. Seek Legal Representation Immediately

People in removal proceedings are not guaranteed a government-appointed attorney—regardless of age, trauma, or the stakes involved . This means you must find your own lawyer.

ImmDef’s Rapid Response Program provides free, immediate legal support including:

• Emergency legal consultations and intakes
• Preparation and accompaniment for in-person screenings at ICE check-ins and detention centers
• Bond representation to secure release from detention 

To find free or low-cost immigration legal services in your area, visit the Immigration Legal Services directory or contact your county’s resource line .

3. Document Everything

If you are detained or have a family member who is detained, documentation is critical. The Community Needs Assessment survey (available through 211 services) helps community organizations understand what resources are most needed by those impacted by ICE activity . Collected information is kept safe and secure following strict privacy rules .

4. Contact Your Congressional Representative

Your elected officials can help. The Office of Congresswoman Julia Brownley, for example, may assist with:

• Checking the status of an immigration case or application
• Detention facility location assistance
• Locating a detained family member
• Confirming whether there is a deportation or removal order 

To find your representative, visit the United States House of Representatives website and enter your zip code .

5. Consider Filing a Habeas Petition

If you have been detained for a prolonged period—generally over six months—or if you have statutory protections like parole or TPS, you may have grounds for a habeas petition. While hiring an attorney is best, some individuals successfully file pro se (representing themselves).

Your habeas petition should argue:

• That your detention violates due process
• That you are entitled to a bond hearing where the government must justify your continued detention by clear and convincing evidence 
• That any applicable statutory protections (like the TPS non-detention provision) prohibit your detention 

The Bigger Picture: Why Fighting Matters

These legal victories matter for reasons beyond the individuals directly affected.

First, they establish precedent. Every successful habeas petition, every granted TRO, every preliminary injunction sends a message to ICE and DHS that they cannot operate with impunity. Courts are watching, and they will enforce constitutional and statutory limits.

Second, they build community power. As ImmDef notes, through culturally competent legal representation, community education, and coordinated regional support, “we make sure no one is left to navigate an immigration emergency alone. Our work strengthens community power, safeguards due process, and pushes back against a system designed to intimidate and isolate” .

Third, they save lives. Detention is not neutral—it is harmful. People detained in ICE facilities face overcrowding, unsafe conditions, and separation from families and legal support . Every person released is a person who can return to their community, their job, their children.

Conclusion: You Are Not Alone

The recent habeas victories in California prove something essential: the law can be a tool of liberation, not just oppression. When immigrants and their advocates stand up and demand their rights, courts sometimes listen.

Yes, the situation is frightening. Yes, enforcement has escalated. Yes, the system is stacked against immigrants in many ways. But despair is not an option—and it is not justified by the facts.

In just the past few months, a TPS holder was ordered released despite ICE’s

As of September 30, 2025, Congress has yet to pass essential spending bills to keep the federal government running beyond September 30, 2025. If these bills are not approved, a government shutdown is imminent starting October 1, 2025, with significant consequences for many federal agencies — including those involved in immigration case processing.

For employers relying on a foreign workforce or immigration-related processes, understanding the potential impacts is crucial to avoid surprises and plan accordingly. Here’s a detailed breakdown of what to expect from key immigration-related agencies during a shutdown:

USCIS (U.S. Citizenship and Immigration Services)

USCIS operates primarily on fee revenues rather than taxpayer funds. Because of this, the agency will largely remain open during a shutdown, continuing most immigration case processing. However, some smaller programs that depend on appropriated funds might see a temporary halt.

U.S. Department of State (DOS)

DOS manages visa operations at U.S. consulates worldwide. As these functions are fee-supported, visa and passport processing generally continues uninterrupted during a shutdown, minimizing disruption for international travel and visa issuance.

U.S. Department of Labor (DOL)

The Department of Labor is expected to be heavily affected during a shutdown. Key processes such as Labor Condition Applications, Prevailing Wage Determinations, and Permanent Employment Certification (PERM) applications will stop. New applications cannot be accepted, and online systems may go offline. Employers may still mail in applications, but processing or acceptance may be delayed due to unavailable staff.

U.S. Customs and Border Protection (CBP)

CBP is deemed essential; therefore, inspecting travelers and enforcing laws at the border will continue. However, immigration application processing services at the border—such as for TN visas—may be delayed or disrupted.

Immigration and Customs Enforcement (ICE)

ICE operations will continue through a shutdown. The Student and Exchange Visitor Program (SEVP), which manages international student monitoring, is fee-funded and expected to remain unaffected.

Executive Office for Immigration Review (EOIR)

Immigration courts face a divided fate: cases involving detained individuals will proceed, while non-detained cases are likely to be postponed and rescheduled when the shutdown ends.

What Employers Should Do Now

With these potential disruptions, employers relying on government immigration services could face slowed or halted processing for new and ongoing cases. This slowdown could impact workforce planning, new hires, and compliance.

Employers are strongly advised to consult with immigration counsel to discuss how these developments could affect their specific situations and to explore proactive measures to minimize the impact on their foreign national employee population.

The looming government shutdown presents unique challenges for immigration-related activities critical to employers and foreign workers alike. Staying informed and prepared during this uncertain period will help companies navigate potential delays with greater confidence.

This information reflects the guidance available as of now and may evolve. For specific legal advice or updates, please seek qualified immigration counsel promptly.

As of 2025, significant new fees affect asylum seekers and those applying for related immigration benefits. These changes cover initial asylum filings, introduce annual fees for pending asylum cases, and update work permit application costs. Stay informed with this essential guide.

Annual Asylum Case Fees

For the first time, an annual fee of $100 is required to maintain an active asylum case. This applies to cases with both USCIS and EOIR (immigration court). The fee helps cover government processing costs as your claim progresses.

• USCIS: Applicants with asylum cases pending for one year or more as of September 30, 2025, owe the $100 fee for this year. For example, if your case has been pending for three years by that date, you pay $100 now and annually thereafter as long as your case remains open. USCIS will send detailed payment instructions via notice but has not finalized the timing or process. More details are available on the USCIS fee update page.
• Immigration Court: For cases pending at least one year as of July 4, 2025, the $100 fee applies though the deadline is unclear. Additionally, the court has yet to fully implement a payment system, but some judges are already requesting payment and may enforce consequences for nonpayment. You may pay early via the immigration court payment portal by selecting the initial asylum application fee, printing the receipt, and presenting it at hearings. For further guidance, see the Asylum Seeker Advocacy Project explanation.

New Filing Fees for Asylum Applications

Beginning July 22, 2025, the fee for filing a new asylum application is $100, where previously it was free.

• USCIS: Pay the fee when filing online or include it with your mailed application. Applications submitted without the fee on or after August 21, 2025, will be rejected. See instructions on paying the filing fee here.
• Immigration Court: The fee applies from July 4, 2025, though payment options became available only on September 23, 2025. Applicants who filed between these dates without paying should now pay and resubmit the application with payment proof.

Work Permit Application Fees

There are new fees for work permits for asylum seekers:

• Initial Work Permit: Starting July 22, 2025, the first work permit application costs $550, with no fee waivers available.
• Renewals: Renewal fees increased by $275, making the total $745 online. Partial fee waivers can still be requested for renewals.

Additional fee changes apply to Temporary Protected Status (TPS) and parole-based work permits with increased fees and shorter validity periods.

What You Should Do Next

• If your asylum case is pending, promptly pay the annual $100 fee upon receiving USCIS or court notice or email from your attorney
• Always include the $100 filing fee with any new asylum application submissions.
• Budget for the updated work permit fees for both initial applications and renewals.
• Stay updated with official USCIS/EOIR announcements on fee payment processes.

These changes require asylum seekers to contribute toward processing costs for their claims and work authorization. Being informed now will help navigate your case smoothly.

This post provides informational content reviewed by expert immigration attorneys and is not legal advice.

USCIS’s new guidance on military naturalization is likely to make the process harder for some veterans—even those who have served honorably—by imposing stricter requirements on discharge classifications and limiting flexible pathways for overseas applicants.

Stricter Discharge Rules Create New Barriers

Effective August 1, 2024, service members with “uncharacterized” discharges will no longer qualify as having separated under “honorable conditions” for naturalization. This shift means that veterans who served honorably but have entry-level or uncharacterized discharges—often due to timing or reasons outside their control—are now excluded from expedited citizenship options that were previously available.

• Only “honorable” or “general under honorable conditions” discharges will meet the eligibility standard moving forward.
• Veterans discharged for reasons such as noncompliance with COVID-19 vaccination requirements may need to formally request an upgrade of their discharge characterization, which is a lengthy and complicated process.

Overseas Interviews Now Require Visa or Parole

USCIS will no longer conduct naturalization interviews or oath ceremonies at ports of entry with U.S. Customs and Border Protection, meaning that veterans living abroad must obtain a visa or parole to return to the U.S. for these critical steps. This change adds logistical and financial obstacles for those stationed or residing outside the United States.

“One Day of Service” Provision Still Applies

Despite these restrictions, one important aspect of military naturalization remains unchanged: a single day of qualifying honorable service is sufficient for eligibility under INA Sections 328 and 329. Veterans and service members must still meet this honorable service requirement in addition to the updated discharge criteria.

What Veterans Should Do Now

• Review military separation documents closely to confirm discharge characterization.
• Seek legal counsel if discharge status may be a barrier or if an upgrade request is needed.
• Veterans overseas should plan to secure necessary travel authorization for naturalization appointments.

Bottom Line

While USCIS claims these changes “protect integrity,” many advocates believe these rules risk denying citizenship to honorable veterans due to paperwork or bureaucratic technicalities. The “one day of service” rule stands as a critical lifeline—but only if all documents match USCIS’s new criteria. Careful review, documentation, and legal assistance are essential for those seeking citizenship after military service

If U.S. Customs and Border Protection (CBP) subjects you to secondary screening, detention, or demands to search your electronic devices (phone, laptop, etc.), here’s what you should know and do as a non-citizen:

1. Stay Calm & Be Polite

• CBP has broad authority at ports of entry, and arguing or resisting can escalate the situation. CBP operates within a “border zone” (up to 100 miles from any U.S. border, including coastlines), where they have enhanced search authority. Always stay calm, remain friendly and deescalate. Under the “border search exception” to the Fourth Amendment, CBP does not need a warrant or probable cause to search people, vehicles, or belongings entering the U.S.
• Answer basic questions (name, travel purpose, length of stay) truthfully, but you do not have to answer questions beyond that (see below).

2. Know Your Rights

• You have the right to remain silent (except for basic ID questions if you’re a visa holder or ESTA traveler).
  • Example: If asked about political views, associations, or social media, you can say:“I choose not to answer that question.”
• You do not have to unlock your phone/laptop if you’re a visitor (B1/B2, ESTA, etc.).
  • But refusal may lead to:
    • Being denied entry.
    • Device confiscation for forensic search (especially if you’re flagged).
    • Longer detention.
• Lawful Permanent Residents (LPRs/green card holders) have more protections (as in they cannot be removed without trial) but can still face consequences for refusing.
• Expedited Removal: Non-citizens without proper documentation can be quickly deported without a hearing if they cannot prove lawful entry or do not have the proper visa/passport to enter the United States. Always ensure that your passport is valid for more than six months when trying to enter or re-enter the United States.
• Checkpoints: CBP operates inland checkpoints (within 100 miles of a border or port of entry) where they can briefly stop vehicles to ask about immigration status. People without immigration status are regularly detained during such inspections.
• Seizure of Property: CBP can confiscate undeclared cash over $10,000, prohibited items (e.g., counterfeit goods, certain foods, drugs), and other contraband.
• If mistreated, you can file a complaint with CBP’s Office of Professional Responsibility or sue for violations.
• If you’re traveling with an animal, please check CDC entry requirements and fill out appropriate paperwork.

3. For LPRs Traveling While a I-751 Is Pending

• Lawful Permanent Residents (green card holders) must maintain continuous residence in the U.S. to preserve their status and eligibility for naturalization (citizenship). One key rule is avoiding extended trips abroad of more than 180 days (6 months) at a time. Trips over 180 days can reset the clock on your continuous residence, delaying eligibility for naturalization. Re-entry after >180 days may trigger secondary inspection, where officers assess your ties to the U.S. Trips over 1 year break the chain of continuity and will lead to abandonment of status unless a re-entry permit is obtained prior to departure from the United States.
• If you’re traveling with an Expired Green Card + I-751 Receipt Legally Permitted: USCIS explicitly states that the I-751 receipt (Form I-797) + expired Green Card is valid proof of status for re-entry during the extension period. 
• Airline & CBP Risks: Airlines sometimes don’t understand immigration paperwork and may hassle you at check-in. Carry a printed copy of the USCIS policy (or the CBP carrier guide). 
• CBP can technically detain you for secondary inspection (rare but possible). Officers have discretion, and some are stricter than others. 

3. If They Demand Your Phone/Password

CBP can examine laptops, phones, and other electronic devices, including accessing social media accounts of persons seeking to enter the United States.

• Visitors (B1/B2, ESTA, etc.):
  • You can say:“I do not consent to a search of my device. But I won’t physically resist or I will comply.”
  • If forced, you may have to comply or risk being denied entry.
  • CBP can search your phone without a warrant at the border (including cloud data if downloaded).
• If you have sensitive data:
  • Use a clean device for travel.
  • Delete social media applications from your phone
  • Enable strong encryption (e.g., iPhone passcode + full-disk encryption).
  • Log out of cloud accounts before arriving to the port of entry.

4. If Detained or Threatened with Deportation

• Ask if you’re free to go. If not, ask why.
• Request an attorney (but CBP may not allow one during initial inspection as there is no right to an attorney at the border).
• If you fear persecution, immediately say:“I am afraid to return to my country and want to apply for asylum.”
  • This may prevent quick deportation.
• Do not sign anything without legal advice.

5. After Release or Denial of Entry

• If your phone was searched, note the details (time, officer, what was accessed).
• If denied entry, ask for the reason in writing.
• Consult an immigration lawyer if you face future issues.

6. Preventive Measures for Future Travel

• Avoid carrying sensitive data (use a temporary phone if needed).
• Know your visa conditions and don’t overstay.
• Check CBP’s records via a FOIA request if you’re frequently stopped.

Bottom Line

• CBP can be aggressive, but staying calm and knowing your rights helps.
• Weigh the risks: Refusing a search may mean being turned away, while complying may expose private data.
• If this happens often, consult a lawyer about your specific case.

Photo by CDC on Unsplash

Disclaimer: The information provided herein is for general informational purposes only and does not constitute legal advice. While efforts are made to ensure the accuracy and reliability of the content, no guarantees are made regarding its completeness, timeliness, or applicability to individual circumstances. By accessing or using this information instead of specifically tailored legal advice, you agree that you do so at your own risk and that the author shall not be held responsible for any consequences arising from its use.