Publication

Review of the American Immigration Council’s Practice Advisory, “Litigation for Business Immigration Practitioners,” by Leslie K. Dellon

This Advisory Report was released on August 20, 2018

The American Immigration Council is a nonprofit organization that uses research, policy analysis, litigation and international exchange to help achieve and promote legal justice for immigrants.

Introduction

This practice advisory provides information to practitioners about whether they should file a lawsuit in federal court against the U.S. Citizenship and Immigration Services (USCIS) on behalf of their client. This is an important strategy when faced with unpredictable and restrictive agency decisions. The most common federal court challenges to business related USCIS decisions are the Administrative Procedure Act (APA), the Declaratory Judgement Act and the Mandamus and Venue Act of 1962.

The APA is used to overturn agency decisions that go against statutes or regulations. The Declaratory Judgement Act is used to obtain a court order when the USCIS violates a law or regulation. The Mandamus is used to obtain an order that requires the USCIS to make a formal decision on an application or petition that has been pending for an extended period of time.

The APA is limited in judicial rule. An attorney cannot add additional evidence to strengthen the client’s case. The review during the court challenge must be made based on the record that was before the agency when their decision was initially made. This is why attorneys must thoroughly review any Notice of Action, such as a Request for Evidence (RFE), a Notice of Intent to Deny (NOID), or a Notice of Intent to Revoke (NOIR). If the evidence presented is weak, the more likely that the court will favor the USCIS’ earlier decision. If the USCIS made an error when sending one of these notices, it is important to identify this agency error at the time and redirect them to the correct supporting evidence.

Exhaustion of Administrative Remedies 

Unlike the other federal court challenges, the Mandamus does not have a decision to review. Rather, it is a delay in an agency decision. For this situation, it is important to see if the processing time is outside of the normal time frame to determine if action is required.

Determining whether to challenge an agency decision in court based on errors it has made, a review of the agency decision is necessary. When dealing with denials, an attorney should compare USCIS denial reasons with the Immigration and Nationality Act (INA) and regulations that are required. This will help to determine if the decision is a legal error or one based on factual reasoning.

Prior to any federal court challenges, a party must first “exhaust all administrative remedies.” It is the attorney’s job to determine which remedies are necessary. For APA, these administrative remedies include those that are mandated by a statue or regulation. In some recent cases, it has been necessary to appeal to the USCIS Administrative Appeals Office (AAO) first. Although this can significantly delay a case, especially if it affirms a denial on a new ground, a petitioner can supplement the record with additional evidence. This is helpful if new evidence could improve on the case decision.

Final Agency Action

The APA requires that the decision made by the agency be final. Sometimes the USCIS will reopen a previously denied case. It will then argue that the court lacks jurisdiction because the decision is no longer final. Attorneys must advise their clients on the potential reopening of their case and being back before the agency.

The APA serves as a cause of action. When listed in the jurisdictional section of the complaint, it provides a waiver of sovereign immunity and allows the party to sue the federal government. This waiver is needed for the court to exercise jurisdiction. For delayed cases, both an APA and a mandamus claim should be included along with a mandamus statute as the basis for jurisdiction. APA and Mandamus actions based on employment related immigration petitions need to be filed in federal district court.

Parties

It is required in federal court litigation that the party have the legal capacity to sue. They must establish that the claim is within the “relevant zone of interests,” meaning that the claims must be those that the statute is said to protect or regulate. It is important to determine if the petitioner’s claim falls within the zone of interests. Even if the beneficiary of an employment-based visa has the legal capacity to sue, they will still lose their case if the employer involved is no longer willing to commit to hiring them.

Relief

The relief requested will depend upon the party’s claim. If the denial by USCIS was wrong, then the court can work to approve that petition. If the need is for the USCIS to correct errors that were made during the finding of facts or application of the law, then the court can instruct the agency on this. For a Mandamus, the court will order the USCIS to perform its necessary duty.

The standard of review by the court looks to see if the statutes and regulations are applicable and if the agency’s findings are supported by “substantial evidence.” The court reviews the agency’s factual findings and any errors in the application of the law that require correction.

A request for attorney fees and costs under the Equal Access to Justice Act (EAJA) should be included as relief requested in the complaint. However, this is filed as a separate motion. This motion must include evidence that the party was rewarded some relief by the court and that they meet the financial requirements of EAJA.