Does the Board of Immigration Appeals have the Authority to Solicit Amicus Briefs on Vague Policy Questions?

 

A few days ago the Board of Immigration Appeals posted a super confusing amicus invitation.  

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Some of my colleagues have identified the case behind the solicitation. But why the secrecy? How can "members of the public" weigh in on a case that the invitation declines to mention, especially when the question provides no information on the statute, regulation, or constitutional precedent(s) at stake?

This prompted me to wonder if there were any legal criteria or protocols to which the BIA was supposed to adhere when posing such questions. If so, what were they?

Down the rabbit hole 
Under current regulations, the only apparent authority for the Board to recognize amicus briefs is tied to briefs for "person[s]," not policy questions. 

§ 1292.1 Representation of others. 

(a) A person entitled to representation may be represented by any of the following.... 

(d) Amicus curiae. The Board may grant permission to appear, on a case-by-case basis, as amicus curiae, to an attorney or to an organization represented by an attorney, if the public interest will be served thereby.

A regulation authorizes amicus briefs for the benefit of a person. But nothing here references amicus curiae file a brief to support the Board's policy research.

"EOIR’s Board of Immigration Appeals Launches Pilot Program to Solicit Amicus Curiae Briefs"  -  The list of past solicitations of amicus briefs goas back to 2015.

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The Obama-era program  initiated a pilot project consistent with the ambit of the recent BIA solicitation. Its authority expired in 2016.  That said, an Interim Final Rule published in March, 2026 references the practice, but the practice itself has no independent authority. 

The Department also recognizes that, because these briefing procedures will apply when the Board has not summarily dismissed the case, such cases may present important or novel issues for the Board to resolve on appeal. Thus, this rule does not preclude the Board from exercising its expertise to determine whether to request or accept additional briefing to resolve the appeal. See8 CFR 1003.3(c) (“In its discretion, the Board may request supplemental briefing from the parties after the expiration of the briefing deadline.”); EOIR Policy Manual, pt. III, ch. 4.6(i) (last visited Jan. 30, 2026), https://www.justice.gov/​eoir/​reference-materials/​bia/​chapter-4/​6 [ https://perma.cc/​2QPY-HB5N] (discussing amicus curiae briefs); see also EOIR, Agency Invitations to File Amicus Briefs (Sept. 10, 2025), https://www.justice.gov/​eoir/​amicus-briefs [ https://perma.cc/​6R64-8GAM] (explaining that EOIR “occasionally invites members of the public to file amicus curiae briefs addressing issues of significance” and allowing members of the public to subscribe to receive such invitations).  

Is the incorporation of a protocol that expired in 2016 into an IFR enacted in March of 2026 sufficient to make it legal? No idea.  

Post-2016 authority? 
The authority for the recent solicitation is not tied to the 2026 IFR but to a regulation that itself does not authorize this practice.

The invitation states its authority as  EOIR Policy Manual, Part I: Introduction § 5.3(b)(6):

 (6) Amicus Curiae - An appearance as amicus curiae is not a request to represent a party before the Board.  Therefore, a Notice of Entry of Appearance Form is not required.  

The Board generally limits the appearance of amicus curiae to the filing of briefs.  See Part III, Chapter 3.6(i) (Amicus Curiae Briefs).  Amicus curiae may request an opportunity to present oral argument, but such requests are granted sparingly.  See Part III, Chapter 7.7(d)(5) (Supplemental briefs).  

A person or organization wishing to make an appearance as an amicus curiae must file a written request with the Clerk’s Office, preferably with a cover page labeled “REQUEST TO APPEAR AS AMICUS CURIAE.”  See Appendix A (Directory), Appendix D (Cover Pages).  That request should specify the name and alien registration number (“A number”) of the matter in which an amicus curiae wishes to appear and articulate why amicus curiae should be permitted to appear.  A brief should accompany the request to appear as amicus curiae.  If the Board grants the request, the parties will be provided an opportunity to respond.  See Part III, Chapter 3.6(h) (Reply Briefs), 3.6(i) (Amicus Curiae Briefs).  The( request and brief should be served on all parties to the proceedings.  See Part III, Chapter 2.2 (Service on the Opposing Party).

The Board may, at its discretion, acknowledge helpful amicus curiae brief(s) and contributors. 

Tunnel One - Chapter 3.6 (i), the first link, has no reference to any authority for soliciting a brief on a question generated by the Board of Immigration Appeals:

(i) Amicus Curiae Briefs

Amicus curiae briefs are subject to the same rules as parties’ briefs.  See Chapter 3.6 (Appeal Briefs), 3.7 (Briefing Deadlines).  The filing of multiple coordinated briefs from different amici that raise similar points is disfavored.  Rather, prospective amici should submit a joint brief along with the request to appear.  See generally Part I, Chapter 5.3(b)(6) (Amicus Curiae).  In addition, the Board may, at its discretion, acknowledge helpful amicus curiae brief(s) and contributors.

Nothing here that allows amicus briefs on behalf of "issues" and not "person[s."

Tunnel Two - Part III, Chapter 7.7(d)(5) (Supplemental briefs) - also no authority for BIA soliciting an amicus brief on a policy question:

  (5) Supplemental briefs - While the Board generally does not accept supplemental briefs, an exception is made for cases that have been granted oral argument.  Parties may submit supplemental briefs in anticipation of oral argument, but parties are not sent a supplementary briefing schedule.  Parties may submit supplemental briefs until 15 days prior to the date of oral argument.  Parties may reply to supplemental briefs up until 7 days prior to the date of oral argument.  Supplemental briefs should be directed to the Oral Argument Coordinator.  Supplemental briefs are subject to the same requirements as other briefs.  See generally Chapters 2 (Filing with the Board), 2.2 (Service), 3.6 (Appeal Briefs), 4.4 (Motion Briefs).  Amicus curiae are subject to the same supplemental briefing rules and limitations as the parties.  See generally Part I, Chapter 5.2(e) (Amicus Curiae); see also Part III, Chapter 3.6(i) (Amicus Curiae Briefs).  Supplemental briefs must be served on the opposing party as expeditiously as they are served on the Board. 

Again, nothing that allows amicus briefs on behalf of "issues."

Tunnel Three - Part III, Chapter 3.6(h) (Reply Briefs), 3.6(i) (Amicus Curiae Briefs).:

 (h) Reply Briefs

 (1)  Appeals of Immigration Judges’ decisions issued before March 9, 2026 - The Board does not normally accept briefs outside the time set in the briefing schedule, including any brief filed by the appealing party in reply to the response brief of the opposing party.  See subsection (f), above.

The Board may, in its discretion, consider an appealing party’s “reply brief” when the following conditions are met: (i) the brief is accompanied by a “MOTION TO ACCEPT REPLY BRIEF,” (ii) the motion is premised upon and asserts surprise at the assertions of the other party, (iii) the brief identifies and challenges the assertions of the other party, and (iv) the motion and brief are filed with the Board within 21 days of the filing of the other party’s brief.  The brief should comply generally with the rules for motions.  See Chapter 4.2 (Filing a Motion).  If the appeal was filed by a detained alien, see Chapter 3.7(a)(2) (Detained cases).

The Board will not suspend or delay adjudication of the appeal in anticipation of, or in response to, the filing of a reply brief.

(i) Amicus Curiae Briefs

Amicus curiae briefs are subject to the same rules as parties’ briefs.  See Chapter 3.6 (Appeal Briefs), 3.7 (Briefing Deadlines).  The filing of multiple coordinated briefs from different amici that raise similar points is disfavored.  Rather, prospective amici should submit a joint brief along with the request to appear.  See generally Part I, Chapter 5.3(b)(6) (Amicus Curiae).  In addition, the Board may, at its discretion, acknowledge helpful amicus curiae brief(s) and contributors.

So also no additional authority for inviting amicus briefs tied to a policy question and not a specific person.  

Why bother with any of this? 
Because the stakes are huge. Do we want executive agencies appropriating the prerogatives of the judiciary and declaring statutes unconstitutional?  Do we want the Department of Justice in particular to be doing this? What would this mean for the rule of law? If EOIR cannot follow its own internal rules, and if the BIA cannot form an intelligible legal question, do we really want the Board to be making constitutional decisions? Absent a concrete question tracking its own regulations, the only appropriate response to the BIA's solicitaiton appears to be rhetorical.  

 

 

 

 

Will FOIA Trial Allow Public to See What Lauren Underwood was Doing behind her Revolving Door?

On May 21, 2026, Federal District Court Judge Matthew Kennelly made history. Very few civil lawsuits go to trial. And when it comes to those brought under the Freedom of Information Act, the number each year is even smaller.   

Indeed, a 2011 study by Margaret Kwoka shows that for nine years, the number was exactly zero. 

 

cont.

 

His patience with inadequate declarations worn thin, Judge Kennelly produced a litigation unicorn: an order for a FOIA trial!  At present it is scheduled for June 22, 2026 in the courtroom of Judge Kennelly.  Details will be posted on his calendar.

The underlying requests are connected to reporting I did a few years ago, when I discovered Underwood had introduced a bill purporting to be for an electronic health records database and for the benefit of migrant children. The truth was very different, as I explained here in 2019 and then in more detail in early 2020, in an article co-authored with John Washington and published in The Intercept.  

In the summer of 2020, Rep. Underwood was at it again. Following our reporting, the Senate did not pass Underwood's bill, and Underwood updated her campaign finance disclosure, confirming our information that she had underreported her payouts from the kleptocratic NextLevel insurance firm, after she refused to comment on this for our article.  

Underwood may have been lackadaisacal in her financial disclosures, but her diligence on behalf of the surveillance indstury would be rewarded: the House leadership in 2020 promoted the second term member of Congress to the powerful House Appropriations Subcommittee on Homeland Security.  In her new position, she introduced her surveillance industry bill, again using the framing of "health" to fund a project that creates a massive biometric database,  provides no health benefits to migrants, and was opposed by immigrant rights groups in 2019.  

Underwood's persistence as a corporate lackey prompted my curiosity.  She ran as a nurse and a health care advocate, but in her first term was Vice Chair of the Homeland Security Committee and on no health services committees.  

What exactly had been going on with NextLevel?, I wondered. 

A few years and more state court litigation later, I had some answers. The long story of an insurance executive who campaigned as a nurse, in nurses scrubs and a stethsoscope, is here.  (My shorthand description of Underwood: "the George Santos of Illinois.") 

The records provide a case study of what happens to billions of taxpayer funds that are targeted for health care, showing how they end up in the pockets of Underwood and her bosses and not the health care providers for the Medicaid enrollees in Cook County, Illinois, in this case.  

The accounts above also have links to previously sealed records unredacted following my First Amendment litigation, as well as a link to the litigation. (In short, the firm was secretly declared insolvent, and the public has no idea about what happened to hundreds of millions of taxpayer dollars, though we do now know some of the players who made this happen, including a Chicago Tribune CEO and officials at the Fortune 50 firm Centene that took over NextLevel's membership and contracts during secret conservation proceedings.)

Meanwhile, I was waiting on responses to some FOIA requests. Prior to working for NextLevel, Underwood had been working for Health and Human Services, including at one point on insurance markets. Wouldn't it be interesting to see exactly what Underwood was up to in her first years in the Obama administration, before revolving into the industry whose rules it appeared she was earlier creating? These questions drove several FOIA requests. 

As often is the case, the agencies originally provided exactly nothing.  And then, even after litigation, the FOIA searches seemed more concerned with avoiding than locating responsive records. 

In another FOIA case for this same proceeding, Judge Kennelly found against Immigration and Customs Enforcement and ordered they release in their entirety thousands of pages without redactions.  ICE appealed. The appeal is fully briefed and we are awaiting an order.  (You can read an overview of the issues for that and another case now also on appeal in our motion to consolidate.)  The motion was denied, but it was referenced by Judge Kness in a recent hearing for another case and provides a synoposis of the problems with our current FOIA case law.    

Many thanks to the amazing attorneys representing me in this litigation: Nicolette Glazer, Rima Kapitan, Dan Melo, and Andrew Free.  

 

 

 

  

What Crazy Fact about the Rate of Trump's Unlawful Detentions did I just Learn from CourtListener, Thanks to Dan Kowalski and the Rest of the Fabulous Attorneys and Judges Defending the Rule of Law?

Habeas Challenges Increase by 4,119%    

To date under Trump II, about 23,000 habeas motions were filed on behalf of people in ICE Custody (1/21/2025 - 3/20/2026)

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Under Biden, for the Exact Same Period, 535 Habeas Motions were filed on behalf of people in ICE custody

   

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Prompted by Dan Kowalski's listserve blast with the subject heading: "81-year-old Judge Leonie Helen Milhomme Brinkema is NOT HAVING IT!" I read the court order, and some others on recent habeas relief.  As I was musing as to the number of habeas cases brought under Trump, compared to Biden, I realized the answer was readily available via the awesome CourtListener interface (every lawyer reading this needs to add "RECAP" to your browser).   

 

 

 

Federal District Court Swats Down Customs and Border Protection Excuse to Delay FOIA Briefing

The Underwood Files 

 

Insurance Executive Lauren Underwood (aka "the George Santos of Illinois") 
Campaigning for Congress (2018)

Sharing minute order of Northern District of Illinois Judge Matthew Kennelly, denying motion by Assistant U.S. Attorney Alex Hartzler to delay Customs and Border Protection briefing: 

...As plaintiff points out in her response, the claimed lapse in appropriations, if there is one that actually impacts this matter, has existed since mid-February and should have been brought to the Court's attention earlier. Even if that were not the case, there is no appropriate basis in a case already more than five years old for further delays. The Court made this abundantly clear to the parties in its 2/19/2026 order (dkt. 208). CBP has two choices at this point: file a motion for summary judgment, by the 3/20/2026 deadline, based on what it is able to muster by that date, or forego doing so, and await plaintiff's anticipated motion for summary judgment, which is due on 4/3/2026, and respond to that motion. The Court also notes that if plainiff does not file a motion for summary judgment, or files one that is denied, CBP will have the ability to move for judgment as a matter of law under Rule 50(a) during the upcoming bench trial. (mk)
1:22-cv-05072 , Dkt 211

Here is the motion opposing CBP, filed by my attorney, Rima Kapitan.  
Thanks to attorneys Andrew Free and Dan Melo for their insights and to Nicolette Glazer for representing me in the litigation for Health and Human Services records in this case. 

(More on fake nurse Lauren Underwood here.)   

ICE Releases Hundreds of its Detention Subfield Office Addresses and Phone Numbers, Following Court Order

 ICE, We Know Where to Find You! 
Release from Deportation Research Clinic, Buffett Institute for Global Affairs, Northwestern University

 Chicago Sample List from 1,250 Rows of ICE Subfield Offices Nationwide  
For entire spreadsheet, click here

 

Chicago Sample List of ICE Addresses and Phone Numbers 

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Backstory
In 2009, I encountered an ICE report indicating that ICE had 186 "subfield offices," meaning locations with holding cells designed for 24 hours or less.  I filed a request of ICE requesting a list of their locations.  
 

When I received the list, I was stunned to learn that one of the locations was in the Chelsea Market, a couple blocks from my apartment.  The Chelsea Market is a tourist scene, not to mention home to the Food Network and other glam enterprises.  You can read about my conversation with the guy running the U.S. Marshal operation and coordinating on the third floor with ICE's Fugitive Operations in The Nation, "America's Secret ICE Castles."  The guy in charge  did not appreciate my pointing out that he was using Rachel Ray as a human shield and asked me not to reveal their operations, a request I turned down.  Here's a link to the list and story from 2009.  

About ten years later, I was looking at a release of similar list posted on the National Immigrant Justice Center.  Except it was too short and no addresses or phone numbers were included.

ICE's response to my request for the data for the missing fields was an unreadable PDF.  After years of litigation, and a court order from Illinois Northern District Court Judge Mary Rowland, ICE coughed up this list.  The contact information and specification of responsibilities should be helpful to those trying to assist folks ICE is arresting.

 

Many thanks to my FOIA attorney Nicolette Glazer.  The Deportation Research Clinic operates on a miniscule budget and the work of intrepid undergraduate research assistants, who draft our complaints and analyze productions.  Thanks to Gabriel Sanchez, Class of 2026, who worked on this litigation and many other cases.  
Please consider  supporting our work.      

 

Update, March 13, 2026 - The spreadsheet does not include the 88 Tenth Ave., NYC (Chelsea Market) location where ICE previously operated.  Turns out that the U.S. Marshals et al. relocated a few years ago to Brooklyn.  The new address and phone numbers are listed in the recently released spreadsheet as "NYC ECP" (Enforcement Criminal Prosecutions).