PROS & CONS: Suing in Federal Court for Immigration Denials and Delays

By: Lawrence P. Lataif  

Most people are aware from the news that federal lawsuits are often filed in connection with attempts by individual states to regulate immigration, and by individuals seeking to avoid deportation (now called removal) when found guilty of crimes, denied political asylum, or found to be removable based on other grounds.

Much less known is that federal lawsuits are available for immigration benefits which have been wrongfully denied or unreasonably delayed. Such suits, which represent only a small percentage of federal court lawsuits, can be filed by individuals or employers who are aggrieved or prejudiced by USCIS (United States Citizenship and Immigration Services) action (or inaction) in individual cases. While a federal lawsuit is not feasible or advisable in every situation, it can be very effective when a federal district court judge has become, literally, the court of last resort.

What actions can be brought to Federal Court?

Lawsuits for denied or delayed immigration benefits can include claims for:

1. Declaratory Judgment
2. Injunctive Relief
3. Constitutional Violations – Due Process and Equal Protection
4. Administrative Procedures Act Violations
5. Mandamus Actions
6. De Novo Review of Naturalization Denials
7. Monetary Damages
8. §1983 Civil Rights Actions

Practical Benefits of Filing Suit

Any litigant or lawyer who files a federal court lawsuit must be prepared for lengthy litigation, even though 98.5% of all lawsuits do not go to trial. However, there are practical benefits that accrue to virtually every litigant once a federal court lawsuit has been filed. Among these are:

1. Case gets immediate review by U.S. Attorney’s Office
2. Case gets reviewed by lawyers from OIL (Office of Immigration Litigation)
3. Case gets high level administrative review by USCIS
4. Where the issue is unreasonable administrative delay the case is often won without the government ever filing an answer

When Does Litigation Make Sense?

Federal court litigation can be appropriate in any one or more of the following situations:

1. CIS policy violates statute or regulations
2. CIS policy or regulations are unconstitutional
3. Statutes conflict with each other
4. USCIS ignores favorable evidence to justify denial

Yet, even in these cases, there are important considerations to address before taking the significant step of filing a federal court action. Exhaustion of administrative remedies must be done, unless there is a very compelling reason against it. The costs involved, including legal fees, third party costs and the substantial commitment of time, must be carefully evaluated. Thought must also be given to whether other relief is available to fix the problem, such as a different immigration filing strategy or Congressional action that may change the applicable law.

Helpful Research Resources

Examples of federal court litigation addressed above can be found at the following research resources:

1. Immigration LexisNexis Community (formerly Bender’s Immigration Bulletin – Daily Edition) - www.lexisnexis.com/community/portal/
2. Immigration Daily - www.ilw.com
3. Interpreter Releases – Federal Case Summaries by Gerald Seipp
4. WSJ Law Blog - blogs.wsj.com/law
5. SCOTUSblog -  www.scotusblog.com

ANNOUNCING: Three-Part Seminar: "Federal Court Litigation Against USCIS and Other Federal Agencies."

 

Lataif, LLC has been invited to conduct a three-part seminar series on Federal Court Litigation in Immigration cases starting in the fall and continuing until February of next year. Hosted by the Boston Bar Association, each presentation will be accompanied by a Power Point presentation and the floor will be open throughout for questions and answers.

Topics:

• Why, How and When businesses and individuals can sue when immigration benefits are wrongfully denied or unreasonably delayed
• What types of immigration decisions can prompt a federal lawsuit including erroneous petition denials, and illegal and improper CIS policies
• What claims can/should be brought: Declaratory Judgment, Injunctive Relief, Mandamus, APA violations, Constitutional violations: Due Process, Equal Protection, De Novo review
• Drafting considerations – including venue, exhaustion issues, complaint drafting issues and practice pointers
• Anticipating the defenses – ie: CIS has unlimited and unreviewable discretion, and federal courts have no jurisdiction.

Save the Dates!

Attendance is FREE for Boston Bar Association members and non-members. Seminars from 3:00-5:00PM at the Boston Bar Association at 16 Beacon Street, Boston, MA. Dates as follows:

SEMINAR PART ONE: “Suing in Federal Court for Immigration Denials and Delays: When Your Client Has No Choice but to Sue the Bureaucrats." Tuesday, October 18, 2011

SEMINAR PART TWO: “Pretrial Discovery.” Tuesday, November 15, 2011 (**POSTPONED EVENT -  NEW DATE TBA**)

SEMINAR PART THREE: “Mock Litigation.” Tuesday, February 21, 2012

The program will be included in a WestEd Legal Center live, online broadcast. Please visit here to register for the online broadcast. Online listening fee of $55 applies.

The event will be moderated by Ellen Kief of Law Office of Ellen S. Kief and handouts with exhibits and citations will be provided.

Speakers:

Lawrence P. Lataif, J.D., LLM – Larry has been practicing federal immigration law exclusively since he joined Jones Day in 1986 to organize and head its firm-wide immigration practice. Larry also headed the firm-wide immigration practice of McDermott, Will & Emery and has headed his own boutique immigration firm for over 15 years. Larry conceived of the Religious Worker law and headed the legal team that brought about its passage in 1990. Most recently, Larry’s extensive publications have continued in the Palm Beach Post and Miami Daily Business Review. In 2004, Larry was honored for his legal accomplishments as a recipient of the Ellis Island Medal of Honor. Larry has extensive federal court litigation experience, including federal immigration lawsuits against USCIS, the Department of Homeland Security (DHS), and the Department of Justice (DOJ) requesting declaratory judgments, APA review, mandamus, Constitutional and injunctive relief.

Danielle E. Huntley, JD – Danielle works with Larry on a broad range of immigration matters, including federal litigation. Danielle graduated cum laude from Boston College as a Scholar of the College in Philosophy. At Boston College Law School she was a quarter-finalist in the Grimes Moot Court Competition where she was recognized as a top ten oralist and brief writer. She was a member of the National Religious Freedom Moot Court Team and Co-Chaired the Grimes Moot Court competition the following year. In her third year, Danielle was chosen to spend an intensive full-year working in the Administrative Law Division of the Massachusetts Attorney General’s Office.