Seize the Day! Taking USCIS Denials to Federal Court CLE Materials A Project of the AILA Administrative Litigation Task Force TABLE OF CONTENTS American Immigration Council Business Immigration Practice Tips • Building the Record for Employment-Based Petitions • Responding to a Request for Evidence American Immigration Council Practice Advisories • Failure to Appeal to the AAO: Does it Bar All Federal Court Review of the Case? (Sept. 26, 2016) • Litigation for Business Immigration Practitioners (Aug. 20, 2018) • Immigration Lawsuits and the APA: The Basics of a District Court Action (June 20, 2013) • Mandamus Actions: Avoiding Dismissal and Proving the Case (March 2017) • Mandamus Litigation Against DOL to Address Delays in Prevailing Wage Determinations and Labor Certifications (Nov. 6, 2015) • Requesting Attorneys’ Fees under the Equal Access to Justice Act (Written with the National Immigration Project/June 17, 2014) Sample Pleadings • Sample Complaint for Declaratory and Injunctive Relief: Improper Denial of H-1B Petition for Technical Analyst • Sample Complaint for Improper Denial of Religious Worker I-360 Petition • Sample Motion for Summary Judgment for Improper Denial of Religious Worker I-360 Petition
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Seize the Day! Taking USCIS Denials to Federal Court
CLE Materials A Project of the AILA Administrative Litigation Task Force
TABLE OF CONTENTS
American Immigration Council Business Immigration Practice Tips
• Building the Record for Employment-Based Petitions
• Responding to a Request for Evidence
American Immigration Council Practice Advisories
• Failure to Appeal to the AAO: Does it Bar All Federal Court Review of the Case? (Sept. 26,
2016)
• Litigation for Business Immigration Practitioners (Aug. 20, 2018)
• Immigration Lawsuits and the APA: The Basics of a District Court Action (June 20, 2013)
• Mandamus Actions: Avoiding Dismissal and Proving the Case (March 2017)
• Mandamus Litigation Against DOL to Address Delays in Prevailing Wage Determinations
and Labor Certifications (Nov. 6, 2015)
• Requesting Attorneys’ Fees under the Equal Access to Justice Act (Written with the National
Immigration Project/June 17, 2014)
Sample Pleadings
• Sample Complaint for Declaratory and Injunctive Relief: Improper Denial of H-1B Petition
for Technical Analyst
• Sample Complaint for Improper Denial of Religious Worker I-360 Petition
• Sample Motion for Summary Judgment for Improper Denial of Religious Worker I-360
Petition
Other Resources
• AILA Federal Court Litigation Section
• Litigating Immigration Cases in Federal Court (4th Ed.) by Robert Pauw
• AILA’s Immigration Litigation Toolbox (5th Ed.)
• 2018 AILA Federal Court Conference: Business Litigation (Webcast)
Practice Tip: Building the Record for Employment-Based Petitions The American Immigration Council wants to encourage business immigration practitioners to consider using litigation as a tool to achieve client objectives. When you keep litigation in mind from the outset of a case, your filing is likely to be stronger. And if USCIS does not approve your client's petition, this Practice Tip will help you lay a solid foundation to challenge the denial in federal court and increase the likelihood that the Immigration Council will agree to co-counsel your case.
Before you can challenge the denial of a visa petition in federal court, you must have a strong administrative record. Building that record must begin before you file the visa petition. How do you determine what documentation the employer needs to provide? Start with the basics:
What are the statutory requirements? For example, the O-1 nonimmigrant classification for extraordinary ability lists certain eligible fields with a standard of "sustained national or international acclaim," but carves out a different standard for motion picture and television productions.
What do the regulations say? In the O-1 example, USCIS has provided definitions of "extraordinary ability” and "extraordinary achievement" in the various fields and has identified particular types of documentation to establish eligibility in each field.
What if the statute conflicts with the regulations? For example, in the L-1 classification, one section of the regulations incorrectly identifies a specialized knowledge job as one "requiring specialized knowledge." Yet the INA has less restrictive language —a job "involving specialized knowledge" —which a subsequent section of the regulations also uses. In such cases, direct the agency to the statutory language and provide the documentation that meets the statutory requirement.
Has USCIS issued any applicable policy guidance? Be sure to check the Adjudicator's Field Manual (AFM) and the USCIS Policy Manual (which is being issued piecemeal and replaces the AFM on those topics the Policy Manual has addressed). You should also search AILA's website for other relevant policy memoranda, precedent decisions by the USCIS Administrative Appeals Office (AAO), or AAO decisions that USCIS has directed be adopted as policy. While not always a model of clarity, to the extent that these sources elaborate on the agency's interpretation of certain classification requirements, they can assist you in confirming what criteria must be met and what documentation will fulfill these criteria.
Has USCIS issued a Request for Evidence template? These templates also can be useful for checking whether you have addressed each criterion. AILA and the American Immigration Council's comments on draft templates also are a great source of information about the requirements and legal arguments, if needed, for why the documentation submitted is sufficient and why certain documentation that the petitioner may not have is not required.
For more information regarding the Council's screening criteria for co-counseling business immigration cases, contact Leslie Dellon, the Council's Business Litigation Fellow, at [email protected].
Business Immigration Practice Tip: Responding to a Request for Evidence
While it’s not a happy experience to receive a Request for Evidence (RFE), your response provides an opportunity to build a strong administrative record. Following these steps should reduce the risk of a denial for failure to address the issues raised by the adjudicator and improve the likelihood that the next notice will be an approval. Although there will be occasions when a thorough response still results in a denial, your efforts to improve the record could lay a foundation to litigate the case if necessary.
What to do first? Calendaring.
Before you focus on the substance of the RFE, locate and calendar the due date. Many malpractice insurers require that deadlines be recorded in two separate locations. Check the regulations to determine if your client is entitled to any additional time, such as the USCIS regulation providing for an additional three days if the RFE notice is served by mail. But also remember that if your client used premium processing and you receive the RFE by fax, the three-day rule does not apply.
What about your client?
You must notify the client promptly that USCIS has issued an RFE. Unless the RFE is extremely straightforward, you should not discuss the substance until you have prepared an assessment (discussed further below).
What should you accomplish in your first reading?
Read with purpose, but don’t get bogged down. Start by determining what issues USCIS has raised.
What should you look for in your second reading?
Has USCIS accurately stated the applicable law and implementing regulations? Be alert for overstatements, such as adding to the criterion for extraordinary ability of authoring scholarly articles in the field a nonexistent requirement of evidence of the “research community’s reaction.”
Did USCIS apply the correct legal standard for the visa classification requested? For example, did the RFE claim that the petitioner must submit evidence about the qualifications of subordinates to be supervised by the beneficiary while ignoring or rejecting evidence that the beneficiary qualifies by managing a function?
Business Immigration Practice Tip: Responding to a Request for Evidence | American Immigration Council | May 2016
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What about the evidence already submitted? Is additional evidence needed?
To help you decide, consider the following questions.
Did the petitioner submit evidence responsive to each requirement for the visa classification? A USCIS RFE Template (if available for the classification) can be helpful in determining what evidence USCIS considers responsive to a particular criterion.
If so, why didn’t USCIS find the evidence to be sufficient?
Did USCIS overlook evidence offered by the petitioner to meet a particular requirement or consider it only for a different purpose?
If so, does the evidence need to be “repackaged” (i.e., organized or highlighted in a different way)?
Did USCIS give insufficient weight to any evidence?
How should you prepare the client?
Prepare assessment:
Explain what USCIS is requesting.
Outline response strategy, including identifying which requirements for the classification USCIS considered to have been met.
Describe types of additional evidence that would be responsive to issues raised by RFE.
Ask client to review RFE and tell you what other evidence may be available.
Advise if any action must be taken to protect the beneficiary’s status.
Review client’s obligations for legal fees and costs associated with RFE response.
Review whether the petitioner has the option of withdrawing and filing again instead of responding. Some factors to consider:
⋅ What would happen to beneficiary’s status?
⋅ Is adjudicator “fixated” on a type of documentation petitioner cannot provide?
⋅ Is petitioner unable to provide additional evidence by the response deadline?
⋅ Could petition package be better organized/prepared?
Business Immigration Practice Tip: Responding to a Request for Evidence | American Immigration Council | May 2016
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How should you structure the response?
Prepare the response for the petitioner. Factual statements and documentation must come from/through the petitioner. Attorney statements are not evidence.
Attorney can provide “road map,” including how law applies to facts.
Follow USCIS' Instructions.
Be clear and concise.
Correct misstatements of law or regulation or standard of review.
Respond to each issue raised by USCIS (generally should follow RFE’s order in headings). This may include explaining why an issue is not applicable.
Review any additional evidence from petitioner for direct relevance to issues raised in RFE before including.
Discuss relevance of evidence previously submitted and any additional evidence.
Provide document index. Use index as another opportunity to explain relevance.
If, despite all your hard work, your client’s petition is still denied, you may want to consider litigating the case in federal court. The American Immigration Council may be able to assist in litigation. For information regarding the Council’s potential assistance, please view our screening criteria for co-counseling business immigration cases or contact Leslie Dellon, the Council’s Business Litigation Fellow, at [email protected].
FAILURE TO APPEAL TO THE AAO: DOES IT BAR ALL FEDERAL COURT REVIEW OF THE CASE?
I. Introduction.
Generally, before seeking federal court review of a decision of an administrative agency, an individual is first required to exhaust all administrative remedies. If the individual fails to exhaust, the court may refuse to review the decision. In fact, in some situations, the court will have no jurisdiction over a case if the administrative remedies were not first exhausted. What about appeals to the Administrative Appeals Office (“AAO”)? 2 Can a person get review of a U.S. Citizenship and Immigration Services (USCIS) decision in federal court if he or she failed to appeal the decision to the AAO?3 Probably. The Supreme Court has held that in federal court cases brought under the Administrative Procedure Act (APA), a plaintiff is not required to exhaust non-mandatory administrative remedies. Darby v. Cisneros, 509 U.S. 137 (1993). For a case to be exempt under Darby from the requirement that administrative remedies must be exhausted, the following criteria must be met:
The federal court suit is brought pursuant to the APA, 5 U.S.C. § 701 et seq.; There is no statute that mandates an administrative appeal; Either: (a) there is no regulation that mandates an administrative appeal; or (b) if there is a
regulation that mandates an administrative appeal, it does not also stay the agency decision pending the administrative appeal; and
The adverse agency decision to be challenged is final for purposes of the APA.
This practice advisory will discuss the Darby decision and how lower courts have applied Darby to cases involving administrative appeals to the AAO. There are strategic reasons for not filing an administrative appeal, such as the high percentage of denials affirmed by AAO or the risk that the AAO will affirm on a different ground that may be even harder to overcome in court. However, there is always the risk that a court will misapply Darby and find that exhaustion of an appeal to the AAO is a prerequisite to an APA federal court challenge. If that happens, the federal court case could be dismissed for failure to exhaust. Clients should be counseled fully that this risk exists, even if it is minimal.
The case law relating to exhaustion is not limited to immigration cases and varies from circuit to circuit. Attorneys are thus advised to research the case law in their circuits.
II. What is meant by “exhaustion of administrative remedies”?
The doctrine of exhaustion of administrative remedies governs “the timing of federal-court decisionmaking.” McCarthy v. Madison, 503 U.S. 140, 144 (1992). When the exhaustion doctrine applies, a party must pursue administrative remedies before seeking relief from a federal court. As a general rule, exhaustion of administrative remedies is required in two circumstances: where (1) Congress mandates exhaustion in the relevant statute;4 or (2) a court exercises its discretion and requires that non-mandatory administrative appeals be exhausted.5 As the Supreme Court has explained: “[w]here Congress specifically mandates, exhaustion is required . . . . [W]here Congress has not clearly required exhaustion, sound judicial discretion governs.” McCarthy, 503 U.S. at 144 (citations omitted). III. What did the Darby Court say about exhaustion of administrative remedies under
the APA?
In Darby, the Court stated an important exception to the general rules requiring exhaustion. In cases brought under the APA, Darby holds that exhaustion of administrative remedies can only be required if a statute or regulation mandates exhaustion prior to judicial review. In APA cases,
4 An example of a statutory exhaustion requirement is 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right”). 5 For cases discussing exhaustion as being within a court’s discretion, see, e.g., Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004); Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002) (and cases cited therein).
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where there is no statute or regulation that requires that an administrative appeal be pursued prior to judicial review, a federal court does not have the discretionary authority to require exhaustion. Darby, 509 U.S. at 154 (1993). The Court based its holding on Section 10(c) of the APA, 5 U.S.C. § 704, which establishes when judicial review is available under the APA. Darby, 509 U.S. at 146.6 The Court explained that this section “by its very terms, has limited the availability of the doctrine of exhaustion of administrative remedies to that which the statute or rule clearly mandates.” Id.
IV. Why is Darby significant?
Darby is significant because it eliminates a potential barrier to judicial review in APA cases. As one way to control their expanding dockets, courts are dismissing cases in which the plaintiff did not exhaust all available administrative appeals – even optional appeals not mandated by statute or regulation. As a result, in cases in which a court has this discretionary authority, there is always a risk that the federal court suit will be dismissed if the individual did not exhaust all optional administrative remedies. Where Darby applies, however, a court cannot dismiss an APA case on this basis. 7
V. Does Darby apply to a case involving an administrative appeal to the AAO?
There is generally a strong argument that under the Darby analysis, exhaustion of remedies by appealing to the AAO is not required. Pursuant to this argument, a federal court APA challenge to a USCIS decision could not be dismissed solely because the individual did not first appeal to the AAO. This section provides litigants with guidance on how they can establish that, under the Darby doctrine, an appeal to the AAO is not required, using specific case examples. This section also discusses some circumstances under which courts are still requiring exhaustion through an appeal to the AAO.
6 Section 10(c) states that “final agency action” is reviewable under the APA in federal court. 5 U.S.C. § 704. This section further explains that:
Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.
Id. 7 Note, however, that exhaustion is only one of several issues related to whether a federal court will hear a case. Thus, even if there is no exhaustion problem, there may be other barriers to judicial review. For example, there is a statutory bar to federal court review in at least two types of cases that can be appealed to the AAO. INA §§ 212(h) and 212(i) both specifically limit judicial review. 8 U.S.C. §§ 1182(h) and (i). A full discussion of jurisdiction and other requirements for federal court review is beyond the scope of this practice advisory.
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For your client to be exempted, under Darby, from an appeal to the AAO, you will need to demonstrate that your client’s cases satisfies numbers 1, 2, and 4 below as well as the criterion of either number 3(a) or 3(b):
1. That the federal court case has been brought pursuant to the APA; 2. That there is no statute that mandates an appeal to the AAO; 3. That either:
a. There is no regulation that mandates an appeal to the AAO; or b. If there is a regulation that mandates an appeal, it does not also stay the agency
decision pending the appeal to the AAO; and 4. That the agency decision is final for purposes of the APA.
Each of these criteria is discussed below.
1. The federal court case must be brought pursuant to the APA.
For the Darby exception to exhaustion to apply, the first requirement is that the suit must be brought under the APA. Because Darby is based upon specific language in the APA, it only applies to APA cases. Thus, you will only be able to argue that exhaustion to the AAO is not required under Darby if your federal case is brought under the APA. In many cases relevant here, the APA provides an appropriate cause of action for a challenge to the denial of your client’s immigration application or petition. The APA provides a cause of action for judicial review of agency action where a person has suffered a “legal wrong” or been “adversely affected or aggrieved by” agency action. 5 U.S.C. § 702. Thus—outside the removal context—the APA often provides the statutory basis for challenges to many USCIS decisions. See, e.g., Shalom Pentecostal Church v. Acting Sec’y USDHS, 783 F.3d 156 (3d Cir. 2015) (APA challenge to denial of religious worker immigrant visa petition); Spencer Enters., Inc. v. United States, 345 F.3d 683 (9th Cir. 2003) (APA challenge to denial of immigrant investor visa petition); Louisiana Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800 (E.D. La. 1999) (APA challenge to denial of H-1B specialty occupation visa petition). If a case is not brought under the APA, the Darby exception will not apply. As the Supreme Court specifically noted, courts will continue to have discretion to require exhaustion in cases not governed by the APA. Darby, 509 U.S. at 154-55. Thus, Darby will not apply if the suit is solely a mandamus action under 28 U.S.C. § 1361 or one for declaratory relief under 28 U.S.C. § 2201. In these cases, a court clearly retains the discretionary authority to require a plaintiff to first appeal to the AAO. See Henriquez v. Ashcroft, 269 F. Supp. 2d 106 (E.D.N.Y. 2003) (dismissing mandamus petition for failure to exhaust where petitioner did not appeal to the AAO). 2. You must show that there is no statute that mandates an AAO appeal.
The Darby exception will not apply if there is a statute that mandates the exhaustion of a particular administrative appeal prior to federal court action. In cases in which an AAO appeal is
available, this requirement is easily met. There is no statutory reference to the AAO in the INA, and, thus, no statutory mandate that AAO appeals be exhausted prior to federal court review.
3. You must also show that either there is no regulation that mandates an appeal, or if there is a regulation mandating an appeal, that it does not explicitly stay the agency decision while the appeal is pending at the AAO.
This requirement consists of two subparts. If you can demonstrate either subpart you will have satisfied this requirement.
a. You must show that there is no regulation that mandates exhaustion to the AAO.
This requirement can be met by showing that no regulation mandates an appeal to the AAO. There are numerous regulations that address AAO appeals from specific types of cases.8 As discussed below, the majority of these regulations do not mandate exhaustion of an appeal to the AAO prior to federal court review. This practice advisory does not discuss every AAO regulation, however, and attorneys are advised to identify the regulation relevant to the particular case to ensure that it does not mandate an AAO appeal prior to judicial review.
For a regulation to mandate exhaustion, courts generally have held that the regulatory language must be explicit.9 Where there is no explicit mandate, any administrative appeal that may be available is considered optional. In EG Enters., Inc. v. DHS, 467 F. Supp. 2d 728, 732 (E.D. Mich. 2006), the district court concluded that, under Darby, an employer who missed the appeal deadline to the AAO did not have to exhaust prior to suing over USCIS’ denial of its H-1B petition for a specialty occupation worker.10 See also RCM Techs., Inc. v. USDHS, 614 F. Supp.
8 The AAO can hear appeals in approximately 40 different types of cases, including, for example: certain employment-based visa petitions; special immigrant visa petitions, such as for religious workers and juveniles; VAWA self-petitions; non-immigrant visa petitions for certain temporary workers and for fiancées/fiancés; and orphan petitions. 9 See, e.g., CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1079 (D.C. Cir. 2009) (holding that the court has no authority to require a party to exhaust when the relevant authority permits an appeal to the superior administrative authority, but does not require such appeal); Shawnee Trail Conservancy v. USDA, 222 F.3d 383, 389 (7th Cir. 2000) (exhaustion mandatory where regulation stated that federal district court review would be premature unless the plaintiff exhausted administrative remedies); Marine Mammal Conservancy, Inc. v. Dep’t of Agriculture, 134 F.3d 409, 411(D.C. Cir. 1998) (exhaustion mandated where the statute allowed “review” of final orders and the regulations defined a final order “for purposes of judicial review” as being an order following an administrative appeal); United States v. Menendez, 48 F.3d 1401, 1412 n.15 (5th Cir. 1995) (identifying statutes that might impose a mandatory exhaustion requirement). 10 The court noted that USCIS concurred in its cross-motion for summary judgment that the employer was not required to exhaust. Id. at 733. The court also cited to 8 U.S.C. § 1329 (INA § 279), as a basis for its jurisdiction. Id. However, the court’s reliance on this provision is misplaced, as a 1996 amendment limited district court jurisdiction under the provision to suits brought by the United States and specifically precluded its use to establish jurisdiction for suits against the United States, its agencies or officers.
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2d 39 (D.D.C. 2009) (plaintiffs can seek judicial review of H-1B petition denials, since AAO appeal optional, but plaintiffs cannot enjoin an alleged policy change, which was not binding on adjudicators and thus not final agency action). Under Darby, a court will not have discretion to require exhaustion of such an optional administrative appeal. Much of the regulatory language concerning AAO appeals permits these appeals but does not explicitly mandate them. 11 Under these regulations, an appeal would be optional rather than mandatory. For example, the general regulation governing the AAO is explicitly permissive, stating simply that certain unfavorable agency decisions “may be appealed” to the AAO. 8 C.F.R. § 103.3(a)(1)(ii). A number of the regulations pertaining to appeals of specific types of cases repeat this same language. See, e.g., 8 C.F.R. § 223.2(g) (denial of reentry permit or refugee travel document applications); 8 C.F.R. § 204.4(g)(1) (denial of Amerasian petition). Another regulation also states that the denial of a petition “shall be appealable” to the AAO. 8 C.F.R. § 204.5(n)(2) (employment-based and special immigrant visa petitions).12 The Ninth Circuit has considered language that is almost identical to that described above, and held that this language permits an appeal but does not mandate exhaustion of administrative remedies. Young v. Reno, 114 F.3d 879 (9th Cir. 1997). Consequently, the court in that case found that the Darby exception applied. In Young, the plaintiff in an APA lawsuit challenged the revocation of her fourth-preference visa petition. The regulations in existence at the time stated that a petitioner “may” appeal a revocation decision and that such “appeal[ ] shall lie to the Board of Immigration Appeals.” Young, 114 F.3d at 882. The court found that while these regulations “allow” a petitioner an administrative appeal, and direct that such an appeal will be to the BIA, they “provide that the appeal itself is optional.” Id. Moreover, the court found that because it was an optional administrative appeal, the plaintiff could proceed with the APA suit without having pursued the administrative appeal to the BIA. See also Chu Inv., Inc. v. Mukasey, 256 F. App'x 935, 936 (9th Cir. 2007) (unpublished) (finding that, under Darby, no AAO appeal was required from a prospective employer’s review of a denial of its immigrant visa petition for an intracompany manager).
11 Over a decade ago, DHS indicated it was considering proposing a regulation that would mandate exhaustion of AAO appeals as a prerequisite to judicial review. See 69 Fed. Reg. 37504, 37526-27 (June 28, 2004). As DHS continues to include this proposal without taking any action, there is no way to predict if or when the agency will actually publish a proposed rule. See 80 Fed. Reg. 77776, 77778 (Dec. 15, 2015). 12 In ASP, Inc. v. Holder, No. 5:12-CV-50-BO, 2012 U.S. Dist. LEXIS 188426, *8 (E.D.N.C. Dec. 11, 2012), the court read this regulation as mandating AAO exhaustion from the denial of an employment-based immigrant visa petition and cited as authority cases that are distinguishable: Howell v. INS, 72 F.3d 288, 293 (2d Cir. 1995) (exhaustion required because plaintiff was in deportation proceedings and could renew her adjustment application before the immigration judge); Oddo v. Reno, 17 F. Supp. 2d 529, 531 (E.D. Va. 1998), aff’d without opinion, 175 F.3d 1015 (4th Cir. 1999) (dicta because plaintiff filed suit challenging I-140 revocation only after appeal denied at AAO, but court said she had exhausted by pursuing her right to appeal).
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A number of other AAO regulations state only that an individual is to be notified of his or her “right to appeal” to the AAO. See, e.g., 8 C.F.R. § 204.6(k) (investor visa petition); 8 C.F.R. § 214.2(k)(4) (fiancée petition). Considering exactly this language in another context, the Ninth Circuit has held that this constitutes an “optional” appeal only and does not mandate exhaustion. Abboud v. INS, 140 F.3d 843, 847 (9th Cir. 1998) (concerning optional appeal to the BIA of a denial of a family-based visa petition).
b. If there is a regulation mandating an appeal, you must show that it does not explicitly stay the agency decision while the appeal is pending at the AAO.
Even were there a regulation mandating exhaustion of an appeal to the AAO, exhaustion still would not be required under Darby unless that regulation also required a stay of the agency decision pending the administrative appeal. See Idaho Watersheds Project v. Hahn, 307 F.3d 815, 826 (9th Cir. 2002), abrogated on unrelated ground as recognized by Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157-58 (2010) (Darby exception to exhaustion applied where mandatory exhaustion provision did not also make the agency decision inoperative while the appeal was pending); DSE, Inc. v. United States, 169 F.3d 21, 27 (D.C. Cir. 1999) (Applying Darby and finding exhaustion not required where the filing of an administrative appeal did not render the agency determination inoperative while the appeal was pending).
One regulation appears to render the agency decision inoperative while the AAO appeal is pending. See 8 C.F.R. § 214.11(r) (application for T nonimmigrant status). However, this provision does not also mandate an AAO appeal as a prerequisite to judicial review. Thus, the Darby exception should still apply. Accord Young, 114 F. 3d at 882 (Darby applied where the regulations rendered the agency decision inoperative during the administrative appeal but did not also mandate the administrative appeal).
4. You must show that the agency decision is final under the APA.
Distinct from the question of exhaustion, the APA also requires that an agency decision be final before it can be challenged in federal court. 5 U.S.C. § 704; see also Darby, 509 U.S. at 144 (distinguishing between doctrines of finality and exhaustion of administrative remedies). A decision is final when a “decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.” Id. In most cases, the adverse USCIS decision denying a petition or application will be a final decision under this standard. For example, in Ore v. Clinton, 675 F. Supp. 2d 217, 223-24 (D. Mass. 2009), the district court applied Darby and determined that per 8 C.F.R. § 214.2(l)(10), the appeal of an L-1 petition denial was optional (“may be appealed”) and that a “failure to [timely] take an optional appeal to the AAO” made the adverse decision “final.” In Pinho v. Gonzales, 432 F.3d 193, 200, 202 (3d Cir. 2005), the Third Circuit held that an AAO decision was final when there was no proceeding pending in which the agency could review the disputed adjustment decision. USCIS denied Pinho’s adjustment application after determining that he was statutorily ineligible, and the AAO affirmed this decision on appeal. Pinho challenged the AAO decision in district court, which also affirmed, and then again on appeal to the Third Circuit. That court held that the agency decision was final notwithstanding the
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possibility that, if Pinho were placed in removal proceedings, he could renew his adjustment application; the mere possibility of future proceedings did not render the decision non-final. Id. at 201-02. Instead, citing Darby, the court concluded that the decision was final because no statute or regulation required exhaustion; and that there was no administrative appeal from the AAO decision, which “was ‘operative’ from the moment it was entered.” Id. at 202.
Beware, however, that if you file an optional administrative appeal for your client, you should await a final decision on this optional appeal before filing a federal court action. Several courts have refused to apply Darby where an individual pursued an optional administrative appeal and then also filed an APA action while this appeal remained pending. See, e.g., Bangura v. Hansen, 434 F.3d 487, 501 (6th Cir. 2006), Wilt v. Gilmore, 2003 U.S. App. LEXIS 6876 (4th Cir. 2003)
(unpublished); Ma v. Reno, 114 F.3d 128 (9th Cir. 1997). Presumably, under Darby, the courts in these cases would not have been able to require exhaustion had the individuals bypassed the administrative appeal altogether, since the administrative review was optional. Because the administrative review was underway, however, each court held that there was not yet a “final” agency decision, and dismissed the suits on this basis.
Thus, a court likely would find that the agency decision was not final if an AAO appeal was pending at the time that the APA suit was filed. There also may be other situations in which adverse agency action is not final for purposes of the APA. For example, a notice of intent to revoke a visa petition is not a final agency decision subject to challenge in federal court under the APA. Thus, prior to filing suit, you must be sure that you are challenging a final agency decision.
VI. How have lower courts applied Darby in contexts not involving the AAO?
A number of circuit courts have applied the Darby analysis in cases involving regulatory language similar to that governing appeals to the AAO. These decisions can be used to support an argument that, under Darby, an administrative appeal to the AAO is not required in an APA suit—particularly in Circuits in which the courts have not addressed Darby in the context of an AAO appeal.
There also have been court decisions that found that particular statutory or regulatory provisions mandate exhaustion. These decisions are helpful to demonstrate that the regulatory language pertaining to an AAO appeal falls far short of the mandatory language contemplated by Darby. The following lists relevant cases applying Darby by circuit.
First Circuit: In Global Tower Assets, LLC v. Town of Rome, 810 F.3d 77, 84–85 (1st Cir. 2016), which was not an APA action, the Court in dicta discussed Darby with regard to what constitutes “final agency action” under the APA. In Trafalgar Capital Assocs., Inc. v. Cuomo, 159 F.3d 21 (1st Cir. 1998), the Court considered, in the context of determining when a statute of limitations accrues, the distinction made in Darby between “permissive” and “mandatory” administrative appeals.
Second Circuit: In Sharkey v. Quarantillo, 541 F.3d 75, 90 (2d Cir. 2008), the Court concluded that an individual who challenged USCIS’ purported rescission of her lawful permanent resident
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status without complying with rescission procedures was not subject to any administrative exhaustion requirement. Citing the holding in Darby, the Second Circuit noted that the government had “not pointed to any statute or regulation that expressly mandates exhaustion of her claims.” Id. In contrast, the Second Circuit has found a mandatory exhaustion requirement where the regulation states that an administrative review procedure is a “prerequisite to seeking judicial review.” SEC v. Stewart, 374 F. 3d 184 (2d Cir. 2004); see also Bastek v. Federal Crop Ins. Corp., 145 F.3d 90 (2d Cir. 1998) (finding that the statute mandates exhaustion); Ciba-Geigy Corp. v. Sidamon-Eristoff, 3 F.3d 40, 46 n.4 (2d Cir. 1993) (mandatory exhaustion language in regulation). The Second Circuit also has held that, with regard to the denial of an adjustment of status, exhaustion is required once removal proceedings have begun. The Court based its holding on the regulation that allows an individual to renew an adjustment application in proceedings, apparently finding—without any analysis of the regulation in question—that it was a mandatory exhaustion requirement. Howell v. INS, 72 F.3d 288 (2d Cir. 1995). But see Pozdniakov v. INS, 354 F.3d 176 (2d Cir. 2003) (requesting further briefing in APA case challenging denial of advance parole where there was no statutory or regulatory exhaustion requirement).
Third Circuit: In Massie v. USHUD, 620 F.3d 340, 359 (3d Cir. 2010), the Court held that an administrative appeal to the superior agency authority was not mandatory when the relevant regulation solely provided that a party “may file” an appeal with the superior agency authority. See also Pinho v. Gonzales, 432 F.3d 193, 200, 201-02 (3d Cir. 2005), Section V.4, supra. Fourth Circuit: See Fort Sumter Tours, Inc. v. Babbitt, 66 F.3d 1324, 1334 n.2 (4th Cir. 1995) (In APA suit, court cites Darby and notes that there is no statute mandating exhaustion of administrative remedies).
Fifth Circuit: The Fifth Circuit determined that regulatory provisions that permit an individual to “seek wholly discretionary review within the agency but do not require this as a prerequisite for judicial review,” do not trigger the exhaustion requirement of the APA. United States v. Menendez, 48 F.3d 1401 (5th Cir. 1995). In a footnote, the Court provided examples of statutory and regulatory language that would mandate exhaustion in APA claims under Darby. Among these examples were the former judicial review provisions of the INA, former 8 U.S.C. § 1105a(c), and a regulation relating to appeals before the BIA. Id. at 1411, n.15. Additionally, in an unpublished decision, AAA Bonding Agency Inc. v. USDHS, 447 F. App'x 603, 612 (5th Cir. 2011), the Fifth Circuit applied the Darby doctrine when there was no statute or regulation that explicitly required exhaustion. Nonetheless, in Dresser v. MEBA Med. & Benefits Plan, 628 F.3d 705, 710 (5th Cir. 2010), the Fifth Circuit indicated that exhaustion is required when the relevant statute provided that a particular action “shall be” appealed to the superior agency authority.
Sixth Circuit: The Sixth Circuit relied on Darby when it determined that a statute and regulation that simply provide an administrative avenue that a party “may” pursue, do not mandate exhaustion prior to an APA suit. Dixie Fuel Co. v. Commissioner, SSA, 171 F.3d 1052, 1059 (6th Cir. 1999), overruled on other grounds by Barnhart v. Peabody Coal Co., 537 U.S. 149, 157-58 (2003). Furthermore, in Haines v. Fed. Motor Carrier Safety Admin., 814 F.3d 417, 427 (6th Cir. 2016), the Court explained that an administrative appeal was optional when the relevant authority provided for an “opportunity for review,” and “that such review shall occur not later than 10 days after issuance of [the agency’s] order.” The court concluded that exhaustion is
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optional when the relevant authority provides that a party “may” appeal an agency’s decision to the relevant superior agency authority. However, the court dismissed the APA claim, finding that Mr. Haines had an adequate remedy under a different statute. Id.
Seventh Circuit: The Seventh Circuit has been clear about what statutory or regulatory language will trigger an exhaustion requirement under Darby. In Shawnee Trail Conservancy v. USDA, 222 F.3d 383 (7th Cir. 2000), the regulations in question stated that federal district court review would be premature unless the plaintiff had exhausted administrative remedies. The Court found this to be a mandatory exhaustion requirement. See also Glisson v. U.S. Forest Service, 55 F.3d 1325 (7th Cir. 1995) (considering similar regulatory language).
Eighth Circuit: See Coteau Properties Co. v. Dep’t. of the Interior, 53 F.3d 1466 (8th Cir. 1995) (finding that under Darby there was no need to exhaust optional administrative remedies). However, in Kakaygeesick v. Salazar, 389 F. App'x 580 n.2 (8th Cir. 2010) (per curiam), an unpublished decision, the Eighth Circuit concluded that the agency regulation required appeal of an Administrative Law Judge decision concerning a Native American land claim to a superior administrative body.
Ninth Circuit: See Abboud v. INS, 140 F.3d 843, 847 (9th Cir. 1998) (finding appeal optional when 1987 immigration regulations at issue provided petitioner with a “right to appeal” to the BIA and did not trigger an exhaustion requirement for an APA suit); Chang v. United States, 327 F.3d 911, 922 (9th Cir. 2003) (statutory provision stating that an LPR “may” request review of a decision did not expressly mandate review). In Gonzales v. DHS, 508 F.3d 1227, 1232 n.4 (9th Cir. 2007), the Court explained that under Darby, since no statute or rule mandates administrative review of the denial of applications to adjust status to lawful permanent resident due to statutory ineligibility, statutory exhaustion was not required. Id. at 1232–33.
Tenth Circuit: In Western Shoshone Business Council v. Babbitt, 1 F.3d 1052, 1055 n.3 (10th Cir. 1993), the Tenth Circuit noted in a footnote that, under Darby, a regulation requires exhaustion when it provides that the agency decision is not final if it is subject to an administrative appeal. In Jech v. Dep't of Interior, 483 F. App'x 555, 560 (10th Cir. 2012), an unpublished decision, the Tenth Circuit held that exhaustion was mandatory under the relevant regulations.
Eleventh Circuit: In Nat’l Parks Conservation Assoc. v. Norton, 324 F. 3d 1229 (11th Cir. 2003), the Court discussed Darby in the context of the “finality” requirement of the APA. Additionally, in Mejia Rodriguez v. USDHS, 562 F.3d 1137, 1145 n.16 (11th Cir. 2009), the Eleventh Circuit explained in a footnote that an appellant challenging an adverse AAO decision is not required to request that the BIA reopen the removal proceeding.
D.C. Circuit: In Atlantic Tele-Network, Inc. v. FCC, 59 F.3d 1384 (D.C. Cir. 1995), the Court determined that because an administrative appeal was optional, exhaustion prior to an APA suit was not required. See also CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1079 (D.C. Cir. 2009) (holding that the district court has no authority to require a party to exhaust when the relevant authority permits an appeal to the superior administrative authority, but does not require it); United States v. Hughes, 813 F.3d 1007, 1010 (D.C. Cir. 2016) (rejecting the government’s
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exhaustion claim as it failed to identify a specific statute or regulation requiring exhaustion). In contrast, in Marine Mammal Conservancy, Inc. v. Dep’t of Agriculture, 134 F.3d 409 (D.C. Cir. 1998), the Court held that exhaustion under the APA was required where regulations made exhaustion a prerequisite to judicial review and the finality of the ALJ decision was suspended pending the administrative appeal.
PRACTICE ADVISORY1 August 20, 2018
LITIGATION FOR BUSINESS IMMIGRATION PRACTITIONERS
By Leslie K. Dellon2
I. Introduction Filing suit can be a powerful tool that can prompt U.S. Citizenship and Immigration Services (USCIS) to issue an approval notice soon after the complaint is filed or lead to a judicial decision holding that USCIS was wrong as a matter of law. This Practice Advisory provides information practitioners need to assess whether a lawsuit in federal court is the right option for a client that has reached its limit with USCIS’ overly restrictive interpretations of legal requirements, shifting adjudications standards and general lack of transparency in decision-making. This Practice Advisory addresses federal court challenges to an erroneous business-related USCIS decision under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., the Declaratory Judgment Act, 28 U.S.C. § 2201, and/or the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361. The APA is the most commonly used cause of action to overturn an agency decision that is contrary to statutes or regulations, as it provides far-reaching injunctive relief. The Declaratory Judgment Act can be used to obtain a court order stating that a particular action by USCIS violates the applicable law or regulations. The Mandamus and Venue Act can be used to obtain an order requiring USCIS to adjudicate a petition or application that has been pending for an unreasonably long time—but not to order the agency to make a particular decision. The Council has additional advisories—referenced and linked to throughout—which expand upon many of the topics discussed here. Attorneys considering federal litigation for the first time are encouraged to review all the relevant advisories. II. A Solid Administrative Record is a Litigation Prerequisite Judicial review under the APA generally is limited to the administrative record that was before the agency when it made its decision. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
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402, 414, 420 (1971); see also Camp v. Pitts, 411 U.S. 138, 142 (1973) (“[T]he focal point for judicial review [in an APA suit] should be the administrative record already in existence, not some new record made initially in the reviewing court.”). There are, however, several exceptions to this rule.3 In most cases, though, the court will decide the legality of USCIS’ decision based on the record before the agency. An attorney cannot supplement that record to strengthen a client’s position during litigation. Thus, a solid record in support of the immigration benefit the client seeks is critical. Practitioners should prepare the petition and supporting evidence with an understanding of the statutory and regulatory requirements for the immigrant or nonimmigrant classification or other benefit. Additionally, the source of the evidence provided will affect the weight the decision maker gives in assessing veracity. The petitioner must present all relevant facts about the petitioner and the beneficiary (in the petition and supporting documentation, which may include a petitioner letter). The attorney then can discuss the law and apply the statutory and regulatory standards to the facts in a separate attorney letter or memorandum. Read all Notices of Action thoroughly. When responding to a Request for Evidence (RFE), a Notice of Intent to Deny (NOID) or a Notice of Intent to Revoke (NOIR), practitioners must answer each query, either by providing a complete response or stating why a particular query is unwarranted or irrelevant. If USCIS has made a false assumption in its query, such as asking for evidence of recruitment for the job when the petitioner is a multinational company seeking to transfer a manager from its foreign subsidiary, then identify the agency error and re-direct the agency to the proper standard and the evidence that supports petition approval based on the petitioner’s intended employment of the beneficiary. With gaps in the evidence, a court is more likely to find that USCIS’ decision was reasonable. With a thorough response, a petitioner will have a much stronger foundation for demonstrating to the court that USCIS ignored or mischaracterized the evidence.
3 The primary exceptions to this rule are when there is no administrative record for the court to review or the record is insufficient with respect to the claims in the suit. Such an incomplete record may “frustrate effective judicial review,” Camp, 411 U.S. at 142-43, and the court may expand review beyond the record or permit discovery. See also Animal Def. Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988), as corrected by 867 F.2d 1244 (9th Cir. 1989) (court may inquire outside the record when necessary to explain the agency’s action or when the agency has relied on documents not in the record). Additionally, the Ninth Circuit has recognized the following exceptions: 1) if discovery is necessary to determine whether the agency has considered all relevant factors and has explained its decision; 2) if the agency has relied on documents not in the record; 3) when supplementing the record is necessary to explain technical terms or complex subject matter; or 4) when plaintiffs make a showing of agency bad faith. Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005).
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III. Deciding Whether to File a District Court Action Several factors will influence a client’s and attorney’s decision about whether to challenge an agency decision in federal court. Initially, it is important to review the agency decision to identify the errors that might be challenged. For all denials, attorneys can compare the reasons USCIS asserted to the requirements in the applicable section(s) of the Immigration and Nationality Act (INA) and regulations. Is the decision based on a legal error? Has USCIS tried to impose a requirement that does not exist? For example, did USCIS violate the statute and regulations when it denied an H-1B petition because the agency erroneously decided that the job offered was not in a specialty occupation because there was no “specifically tailored and titled degree program” typically available to enter the field.4 Or, is the issue a factual one? For example, has USCIS erroneously stated that the beneficiary does not have the degree required by the employer for an H-1B specialty occupation when a copy of the beneficiary’s diploma was submitted with the petition? Finally, was the decision based upon the exercise of discretion? If so, there may be a jurisdictional bar to the court’s review under 8 U.S.C. § 1252(a)(2)(B).5 Generally, in a mandamus case, there will be no decision to review since the issue usually is the agency’s delay in deciding. In such a case, the primary considerations will be the length of time that the agency has delayed and whether it is outside of the normal processing time. When reviewing the strength of the record presented to USCIS or the legal errors that the agency may have committed, weigh the likelihood of making “bad law” if the court rules against the client. Remember that when a federal court reviews a denial, the court is not deciding whether USCIS made the best decision or the same decision the court would have reached—only whether USCIS’ decision was correct legally and whether it acted reasonably in denying the petition based on the evidence presented. IV. Factors to Consider Before Filing Suit A. Exhaustion of administrative remedies Generally, before seeking federal court review of an agency’s decision, a party must exhaust all administrative remedies. Otherwise, the court may find that it has no jurisdiction or otherwise refuse to review the decision. For this reason, lawyers often ask whether they must appeal to USCIS’ Administrative Appeals Office (AAO) before filing suit in federal court. If, as usual, the APA is the basis for challenging a denial of an employment-based visa petition, then the answer is “no.” The Supreme Court held in Darby v. Cisneros, 509 U.S. 137, 153-54 (1993), that in federal court cases brought under the APA, a plaintiff can be required to exhaust only administrative remedies that are mandated by either a statute or regulation—establishing a major exception to the exhaustion requirement. At least two decisions involving the denial of a
4 See Chung Song Ja Corp. v. USCIS, 96 F. Supp. 3d 1191, 1198 (W.D. Wash. 2015). 5 See Section V(A) infra. For additional discussion of this provision, see the Council’s Practice Advisory, Immigration Lawsuits and the APA: The Basics of a District Court Action, at 8-10 (June 20, 2013).
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nonimmigrant employment-based petition concluded, per Darby, that an appeal to the AAO is not a prerequisite because there is no statute or regulation mandating an administrative appeal. See Ore v. Clinton, 675 F. Supp. 2d 217, 223-24 (D. Mass. 2009) (L-1A petition denial); EG Enters. v. DHS, 467 F. Supp. 2d 728, 732-33 (E.D. Mich. 2006) (H-1B petition denial; USCIS agreed in its cross-motion that exhaustion not required).6 In recent years, USCIS is more likely to move to dismiss for lack of a final decision (see § IV(B) infra), than to claim that the plaintiff failed to exhaust by not appealing to the AAO. However, if the government raises failure to exhaust, practitioners can explain why exhaustion is not required under Darby, relying both on the relevant immigration cases and non-immigration cases within the same circuit that have found that the Darby exception applies in similar contexts. See the Council’s Practice Advisory, Failure to Appeal to the AAO: Does It Bar All Federal Court Review of the Case? (Sept. 26, 2016) (explaining in more detail the Darby holding and citing both immigration and non-immigration cases from different circuits). While the risk of bypassing the AAO appears quite small, there is at least one unreported decision in which the federal district court concluded that the regulation for appeal of an I-140 denial is mandatory and, therefore, the Darby exception did not apply. See ASP, Inc. v. Holder, No. 5:12-CV-50-BO, 2012 U.S. Dist. LEXIS 188426, *8 (E.D.N.C. Dec. 11, 2012). The decision appears to be an aberration, and its reasoning has not been followed by other courts.7 An appeal to the AAO can delay a case considerably, particularly when the result is that the AAO simply rubberstamps the decision below. Another concern is the AAO may affirm the denial on a different ground that would be more difficult to overcome than the original denial. Despite these concerns, one practical reason to appeal to the AAO is that—unlike in an APA challenge in federal court—a petitioner can supplement the record before the AAO. See 8 C.F.R. § 103.3(a)(1)(iii)(C); AAO Practice Manual § 3.8 (“Appellants may . . . submit a supplemental brief or additional evidence.”). When reviewing a denial, practitioners should consider whether
6 See also Bangura v. Hansen, 434 F.3d 487, 498 (6th Cir. 2006) (per Darby, no statutory or regulatory mandate requiring administrative appeal of spousal immigrant visa petition denial before filing APA action in federal court); Mantena v. Hazuda, No. 17cv5142, 2018 U.S. Dist. LEXIS 132826, *10-11 (S.D.N.Y. Aug. 7, 2018) (citing Darby, court denied agency request to dismiss by exercising judicial discretion to require exhaustion, after USCIS’ second re-opening of employment-based adjustment application denials while suit pending; “it is hornbook law APA claims are not subject to exhaustion requirements unless specifically required by statute.”) 7 ASP misapplies Darby on two grounds. First, the court disregards permissive language in 8 C.F.R. §§ 103.3(a)(1)(iii)(A) (“may seek judicial review”) and 204.5(n)(2) (“right to appeal”). Second, even assuming the regulation mandated an appeal, Darby still provides an exception when, as with the I-140 denial in ASP, the agency does not stay its decision pending administrative appeal. Darby, 509 U.S. at 153. The district court also cites as authority cases that are distinguishable: Howell v. INS, 72 F.3d 288, 293 (2d Cir. 1995) (exhaustion required because plaintiff was in deportation proceedings and could renew her adjustment application before the immigration judge); Oddo v. Reno, 17 F. Supp. 2d 529, 531 (E.D. Va. 1998), aff’d without opinion, 175 F.3d 1015 (4th Cir. 1999) (dicta because plaintiff did exhaust, filing suit only after appeal denied at AAO).
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additional evidence would significantly improve the likelihood of prevailing in an administrative appeal or in court if the AAO ultimately dismisses the appeal. See Matter of _____, ID# 12521 (AAO Sept. 15, 2015) (record, as supplemented on appeal, “now contains sufficient evidence to overcome the basis” for the L-1B petition denial), AILA Doc. No. 15092101 (posted Sept. 21, 2015). If so, this might be a reason to consider an administrative appeal to the AAO. B. Final Agency Action
The APA also requires that the challenged agency decision be “final.” 5 U.S.C. § 704; see also Darby, 509 U.S. at 144 (distinguishing between doctrines of finality and exhaustion of administrative remedies). A decision is final when a “decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.” Darby, 509 U.S. at 144 (internal citation omitted). In most cases, a USCIS decision denying a petition (or application) will be a final decision under this standard. However, several courts have held that the agency’s decision was not “final” when there was a pending administrative appeal. In these family-based immigration cases, the courts refused to apply the Darby exception where a party pursued an optional administrative appeal to the Board of Immigration Appeals and then also filed an APA action while the administrative appeal remained pending. See, e.g., Bangura, 434 F.3d at 501; Ma v. Reno, 114 F.3d 128, 130 (9th Cir. 1997); Naik v. Renaud, 947 F. Supp. 2d 464, 472 (D.N.J. 2013), aff’d, 575 Fed. Appx. 88 (3d Cir. 2014). Presumably, if the party had only filed suit without taking an administrative appeal, the courts in these cases would not have been able to require exhaustion, per Darby, since administrative review was optional. Because the administrative review was underway, however, each court dismissed the suit on the basis that there was not yet a “final” agency decision. Applying the same reasoning, a court would likely find that a USCIS decision on an employment-based petition was not final if an AAO appeal was pending at the time an APA suit was filed. Unlike USCIS, the Department of Labor (DOL) specifies that a failure to timely request administrative review of a labor certification application denial “constitutes a failure to exhaust administrative remedies.” 20 C.F.R. § 656.24(e)(3). DOL also specifies that a timely-filed appeal to the Board of Alien Labor Certification Appeals (BALCA) of the Certifying Officer’s denial makes the denial non-final. See 20 C.F.R. § 656.24(e). Darby would not provide an exception because DOL regulations mandate administrative review and non-finality while a timely-filed administrative appeal remains pending. USCIS sometimes reopens a case that it denied while the federal court action is pending. The agency then argues that the court lacks jurisdiction because the decision is no longer final so the petitioner cannot seek APA review. In an unpublished decision, one appellate court upheld the district court’s grant of summary judgment to USCIS after USCIS sua sponte reopened the H-1B petition denial and issued a request for evidence. See 6801 Realty Co., LLC v. USCIS, 719 Fed. Appx. 58, 59, 61 (2d Cir. 2018). The court concluded that by requesting more evidence, the reopening “nullified the prior denial and left nothing for the district court to review.” Id. at 60.
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A few federal district courts have dismissed for lack of jurisdiction complaints challenging H-1B petition denials on USCIS’ motion after USCIS reopened and issued a new RFE. See Utah Life Real Estate Group, LLC v. USCIS, 259 F. Supp. 3d 1294, 1296, 1299-1300 (D. Utah 2017) (dismissing suit after USCIS issued second RFE after suit filed, petitioner refused to respond or stipulate to litigation stay, and USCIS denied again); Net-Inspect, LLC v. USCIS, No. C14-1514JLR, 2015 U.S. Dist. LEXIS 24951, *3-4, *10-11 (W.D. Wash. March 2, 2015) (USCIS issued third RFE thirty days after suit filed); True Capital Mgmt. v. DHS, No. 13-261 JSC, 2013 U.S. Dist. LEXIS 87084, *3-4, *8 (N.D. Cal. June 20, 2013) (USCIS issued second RFE after suit filed).8 The Net-Inspect court acknowledged that its decision “might very well be different” if the agency was found to be avoiding judicial review through “repeatedly reopening” its decision. 2015 U.S. Dist. LEXIS 24951, *17 n.7. In Utah Life, the court held that the APA’s finality requirement was jurisdictional and thus it dismissed for lack of subject matter jurisdiction. For this reason, the court also rejected Utah Life’s request that it be permitted to amend its complaint to challenge USCIS’ second denial of the H-1B petition. See Utah Life, 259 F. Supp. 3d at 1299. In contrast, however, a number of courts have held that the APA’s finality requirement is not jurisdictional or have left the question open.9 For instance, in 6801 Realty, the federal district court denied USCIS’ motion to dismiss for lack of subject matter jurisdiction on the ground that the APA’s finality requirement was not jurisdictional. 6801 Realty, 719 Fed. Appx. at 59 n.1. The appellate court declined to resolve the “open question” in the Second Circuit as to whether the APA’s finality requirement is jurisdictional. Id. This approach allowed the appellate court to review whether the district court correctly decided, as a matter of law, that the decision was no longer final. Without a final decision, the plaintiff would not have a claim that the APA was intended to protect.10 The District of Columbia Circuit went further, deciding that pursuant to Supreme Court pronouncements, 5 U.S.C. § 704 is not jurisdictional. See Vietnam Veterans of Am. v. Shinseki, 599 F.3d 654, 661 (D.C. Cir. 2010) (“We think the proposition that the review provisions of the APA are not jurisdictional is now firmly established.”).11
8 See also Shihuan Cheng v. Baran, CV 17-2001-RSWL-KSx, 2017 U.S. Dist. LEXIS 122696, *3, *19 (C.D. Cal. Aug. 3, 2017) (USCIS issued RFE two months after an immigrant investor filed suit based on adjudication delay of more than two years. Court dismissed for lack of jurisdiction finding delay not unreasonable and finality lacking.) 9 See, e.g., Long Term Care Partners, LLC v. United States, 516 F.3d 225, 232 (4th Cir. 2008) (assuming, without deciding, that under Supreme Court precedent for determining whether requirements are jurisdictional, the APA finality rule is not); Trudeau v. FTC, 456 F.3d 178, 183-85 (D.C. Cir. 2006) (holding that the APA finality requirement is not jurisdictional); R.I. Dep’t of Envtl. Mgmt. v. United States, 304 F.3d 31, 40 (1st Cir. 2002) (same); see also Iowa League of Cities v. EPA, 711 F.3d 844, 863 n.12 (8th Cir. 2013) (dicta, APA finality requirement not jurisdictional). Not all courts have ruled on the issue yet. See, e.g., Sharkey v. Quarantillo, 541 F.3d 75, 87-88 (2d Cir. 2008) (finding it unnecessary to resolve the issue in case presented). 10 See § V(D) infra, for more information on standing to sue. 11 Prior to 2006, the District of Columbia Circuit repeatedly concluded that the APA review provisions were jurisdictional. See id. However, the court’s change in position was cemented by Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006). While Arbaugh did not involve a cause of action under the APA, the Court made clear that lower courts err when they treat statutory
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At least one court has held that USCIS has no authority to decide an issue after it is pending with the federal district court, see Otero v. Johnson, No. CIV 16-090-TUC-CKJ, 2016 U.S. Dist. LEXIS 151961, *23-25, *35-38 (D. Ariz. Nov. 2, 2016) (USCIS’ regulations did not permit the agency to reopen on its own motion after the court had jurisdiction over the denial of an application to adjust status to lawful permanent resident).12 See also Mantena, 2018 U.S. Dist. LEXIS 132826, *17-18 (citing Otero, court found USCIS denials of employment-based adjustment applications final, distinguishing 6801 Realty because USCIS did not identify issues requiring further development or request additional evidence and circumstances “suspect” due to prior re-openings, followed by denials.)13 While USCIS does not always reopen a denial after a plaintiff files a federal action, attorneys need to advise their clients of the possibility that they will be back before the agency. If a court decides to dismiss for lack of finality, attorneys should consider asking the court to retain jurisdiction. If the APA’s finality requirement is only a statutory limitation on review, then the court could retain the case so that the client can seek relief without refiling if the agency upholds the denial.14
restrictions as jurisdictional where Congress has declined explicitly to identify the restrictions as jurisdictional. Id. 12 Although INA § 242(a)(2)(B)(i) bars judicial review of “any judgment regarding the granting of relief under section …245,” a number of courts have held that this prohibition does not apply when the claims do not rest on the exercise of the agency’s discretion. These include constitutional questions, questions of law, or challenges to the agency’s failure to comply with procedural requirements. See Mantena v. Johnson, 809 F.3d 721, 730 (2d Cir. 2015) (procedural requirements not shielded from review); Ramalingam v. Johnson, Civ. No. 13-7416 KM, 2016 U.S. Dist. LEXIS 43003, *10-11 (D.N.J. Mar. 30, 2016) (due process challenge to USCIS procedures not barred from review). 13 After denying the motion to dismiss, the court stayed the action because it could not provide relief until USCIS resolved an administrative appeal concerning its revocation of a related immigrant visa petition. The adjustment applicant had relied on that petition to “port” to new employment and to provide an earlier priority date for another approved immigrant visa petition filed by the new employer. (The “priority date” refers to the date an immigrant visa number would be available to her and is crucial given the lengthy backlog the applicant faces to adjust her status due to her nationality and visa category). See id. at *5-6, *18. 14 See Gracious Ark Church v. United States, No. CV 12-3990 GAF (SSx), 2013 U.S. Dist. LEXIS 192042, *21 (C.D. Cal. May 15, 2013) (Case stayed pending final agency action after court concluded agency action no longer final; AAO sua sponte reopened denials of religious worker and spouse’s applications to adjust status to lawful permanent resident while cross-motions for summary judgment pending). The plaintiff may need to file an amended complaint if USCIS asserts new reasons to deny rather than simply affirming its prior decision.
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C. Timing When a civil cause of action against the government is not subject to a separate statute of limitations, the general six-year limitation in 28 U.S.C. § 2401(a) applies. Where the issue has arisen, courts have applied the general limit to the APA, which does not have a statute of limitations, including in the immigration law context. See Mendoza v. Perez, 754 F.3d 1002, 1018 (D.C. Cir. 2014); Nagahi v. INS, 219 F.3d 1166, 1171 (10th Cir. 2000).15 V. Preparing the Complaint A. Jurisdiction In an APA case for the review of agency action, subject matter jurisdiction is based on 28 U.S.C. § 1331, the “federal question” statute. Califano v. Sanders, 430 U.S. 99, 105 (1977).16 Although the APA does not confer jurisdiction but instead serves as a cause of action (see Section V(C) infra), attorneys often list it in the jurisdictional section of a complaint because it also provides a waiver of sovereign immunity that allows a party to sue the federal government over unlawful agency action for non-monetary damages. See Bowen, 487 U.S. at 891-92 (undisputed that Congress intended to expand judicial review of agency action by amending § 702 to eliminate sovereign immunity defense). Such a waiver is necessary for the court to exercise jurisdiction. See Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994) (“[S]overeign immunity is jurisdictional in nature.”). The APA is not available as a cause of action to the extent that another statute precludes judicial review. See 5 U.S.C. § 701(a)(1). Since the INA contains provisions that bar judicial review, attorneys should confirm that the client’s claims do not fall within these provisions. The government most frequently asserts the bar on review of discretionary decisions, 8 U.S.C. § 1252(a)(2)(B)(ii). Importantly, most courts have held that statutory eligibility determinations are not discretionary and thus do not fall within § 1252’s bars to review of discretionary decisions.17 In most employment-based cases, the statutory eligibility requirements for visa classifications are sufficiently specific to overcome this threshold. See, e.g., Fogo de Chao (Holdings) Inc. v. USDHS, 769 F.3d 1127, 1138 (D.C. Cir. 2014) (no jurisdictional bar to challenging L-1B visa classification denial because the criteria for L-1B visa determinations are
15 However, be aware of an exception that imposes a four-year statute of limitations for suits that arise under a statute adopted after December 1, 1990. 28 U.S.C. § 1658; see Middleton v. City of Chi., 578 F.3d 655, 665 (7th Cir. 2009). While this exception would not apply to the APA, which was enacted before 1990, it is unclear whether § 1658 would apply if the APA-based suit challenged conduct as violating a statute enacted after December 1, 1990. In that case, the prudent practice would be to file within four years when possible. 16 See also Bowen v. Massachusetts, 487 U.S. 879, 891 n.16 (1988); ANA International Inc. v. Way, 393 F.3d 886, 890 (9th Cir. 2004) (“default rule” that agency actions are reviewable under federal question jurisdiction applies in the immigration context). 17 For more information on jurisdictional concerns regarding an APA suit, see the Council’s Practice Advisory, Immigration Lawsuits and the APA: The Basics of a District Court Action (June 20, 2013).
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laid out in the statute, including specifically a definition of “specialized knowledge”); Spencer Enters., Inc. v. United States, 345 F.3d 683, 688 (9th Cir. 2003) (the statute setting forth eligibility requirements for immigrant investor visas provided meaningful standards to review petition denial). In any case, practitioners should always be prepared for the government to file a motion to dismiss for lack of jurisdiction. In some cases, the mandamus statute, 28 U.S.C. § 1361, which gives a federal court authority to compel a federal agency or officer to perform a nondiscretionary duty owed to the plaintiff, provides an alternative basis for jurisdiction. See Sawan v. Chertoff, 589 F. Supp. 2d 817, 822 (S.D. Tex. 2008); Kim v. USCIS, 551 F. Supp. 2d 1258, 1261-62 (D. Colo. 2008); Dong v. Chertoff, 513 F. Supp. 2d 1158, 1161 (N.D. Cal. 2007). In cases involving delay, it makes sense to include both an APA and mandamus claim, and then also to include the mandamus statute as a basis for jurisdiction. However, there is “little practical difference” as to whether jurisdiction rests on the federal question statute or mandamus, assuming that the relief requested under the APA and mandamus statute is identical—namely, to compel agency action that has been unreasonably denied. See Dong, 513 F. Supp. 2d at 1161-62 (N.D. Cal. 2007) (citing Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997)).18 In contrast, the Declaratory Judgment Act, 28 U.S.C. § 2201, is a procedural statute that does not confer jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950); see also Fleet Bank, Nat’l Ass’n v. Burke, 160 F.3d 883, 886 (2d Cir. 1998); Missouri ex rel. Mo. Highway and Transp. Comm’n v. Cuffley, 112 F.3d 1332, 1334 (8th Cir. 1997). As such, the Declaratory Judgment Act provides for relief rather than for jurisdiction. The jurisdictional basis for a claim under the Declaratory Judgment Act, as under the APA, is 28 U.S.C. § 1331.
B. Venue: Where to File
APA and mandamus actions arising from employment-based immigration petitions (or applications) must be filed in federal district court. Whether a case is filed in the correct district court depends upon venue—the location over which the court has jurisdiction. Venue for challenging federal agency action is based on 28 U.S.C. § 1391(e), which provides that a suit against the federal government or a federal official acting in his or her official capacity can be brought in any judicial district where (1) a defendant resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or (3) the plaintiff resides if no real property is involved in the action.19 For a business that is legally able to file suit in its own name, the residence would be its principal place of business. 28 U.S.C. § 1391(c). See Blacher v. Ridge, 436 F. Supp. 2d 602, 608 (S.D.N.Y. 2006).
18 Relief is discussed at Section VI infra. 19 Be aware that even when venue is proper, a court may grant a motion to transfer “in the interest of justice” to any jurisdiction where the suit “might have been brought.” 28 U.S.C. § 1404(a). See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981) (“Congress enacted § 1404(a) to permit change of venue between federal courts.”).
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C. Causes of Action
The APA is the most common statutory basis for challenging the denial of an employment-based petition. See, e.g., Shalom Pentecostal Church v. Acting Sec’y USDHS, 783 F.3d 156 (3d Cir. 2015) (APA challenge to denial of special immigrant religious worker visa classification); Spencer Enters., Inc. v. United States, 345 F.3d 683 (9th Cir. 2003) (APA challenge to denial of immigrant investor visa classification); Chung Song Ja Corp. v. USCIS, 96 F. Supp. 3d 1191 (W.D. Wash. 2015) (APA challenge to denial of specialty occupation visa classification); Perez v. Ashcroft, 236 F. Supp. 2d 899 (N.D. Ill. 2002) (APA challenge to denial of nonimmigrant religious worker visa classification). The APA creates a “cause of action” because it provides a basis to sue a federal agency where Congress has not provided a basis elsewhere in the law. See Bennett v. Spear, 520 U.S. 154, 175 (1997). Specifically, the APA provides:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
5 U.S.C. § 702. The APA defines “agency action” to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). Although the APA does not explicitly provide for a private right of action, it “permits the court to provide redress for a particular kind of ‘claim.’” Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 188 n.15 (D.C. Cir. 2006). Accordingly, the Supreme Court has repeatedly held that a separate indication of Congressional intent of the right to sue is not necessary. Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 n.4 (1986); see also Chrysler Corp. v. Brown, 441 U.S. 281, 317 (1979) (finding that a private right of action is not necessary because review is available under the APA). The Mandamus and Venue Act of 1962, 28 U.S.C. § 1361, may provide an additional cause of action. Congress has given federal district courts the authority to compel a federal officer or employee, including those who work for federal agencies, to carry out a non-discretionary duty clearly owed to the plaintiff, who has no other adequate remedy. See Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016). Since mandamus only applies to actions that must be performed and do not require the exercise of discretion, courts often describe the duty as “ministerial.” See Johnson v. Reilly, 349 F.3d 1149, 1154 (9th Cir. 2003).20 20 Even when an agency is not subject by law or regulation to a specific deadline, the reasonableness requirement of the APA, 5 U.S.C. § 706(1), can be asserted. See Forest Guardians v. Babbitt, 174 F.3d 1178, 1189-90 (10th Cir. 1999); Kim, 551 F. Supp. 2d at 1263. For more information about mandamus suits, see the Council’s Practice Advisory, Mandamus Actions: Avoiding Dismissal and Proving the Case (March 8, 2017).
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D. Parties
1. Plaintiffs In all federal court litigation, Article III of the Constitution requires that a plaintiff have standing, or legal capacity, to sue. To this end, a plaintiff must have suffered 1) an “injury in fact,” i.e., harm to a legally protected interest that is “concrete and particularized” and “actual or imminent”; 2) “fairly traceable to” the challenged conduct; and 3) “likely to be redressed” by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations omitted). Several courts have held that beneficiaries of employment-based visa petitions satisfy this test. See, e.g., Shalom Pentecostal Church, 783 F.3d at 162-63; Patel v. USCIS, 732 F.3d 633, 637-38 (6th Cir. 2013); but see id. at 642 (Dougherty, Cir. J., dissenting) (arguing that beneficiary failed to show necessary redressability because he could not get an approved I-140 unless the employer first obtained a labor certification from DOL, neither of which were parties). For APA claims, a plaintiff also must establish that her claim falls within the relevant “zone of interests.” As discussed above, the APA provides that a person who has suffered a “legal wrong” or been “adversely affected or aggrieved by” agency action within the meaning of a relevant statute is entitled to judicial review. 5 U.S.C. § 702. The Supreme Court has interpreted this language to require a showing that the plaintiff ‘s claim falls within the “zone of interests” that the statute was intended to protect and has suffered injuries “proximately caused” by the alleged statutory violation. See Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1388, 1390 (2014) (internal citation omitted).21 To fall within the “zone of interests,” the plaintiff’s claims must be among those the statute “arguably” was intended to protect or regulate—a broader category than those Congress specifically intended to protect. Assoc. of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970); Lexmark, 134 S. Ct. at 1388-89 (internal citations omitted); see Clarke v. Secs. Indus. Ass’n, 479 U.S. 388, 399-400 (1987) (“[T]here need be no indication of congressional purpose to benefit the would-be plaintiff”). In the APA context, the test is not “especially demanding,” since the “benefit of any doubt goes to the plaintiff” and the APA has “generous review provisions.” Lexmark, 134 S. Ct. at 1389 (internal citations omitted). The zone of interests test would preclude an APA claim “only when a plaintiff’s ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be
21 Until recently, the “zone of interests” also was considered to be jurisdictional and often was characterized as “prudential standing.” See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210-11(2012). While explicitly citing to Match-E-Be-Nash-She-Wish Band for the application of the zone of interests test in the APA context, the Supreme Court in Lexmark rejected the “prudential standing” label. See Lexmark, 134 S. Ct. at 1387, 1389. The Court further indicated that the zone of interests test is not jurisdictional since whether a party has a valid cause of action is a question of the court’s “statutory or constitutional power to adjudicate the case” and not of subject matter jurisdiction. Id. at 1387 n.4 (emphasis in original, internal citations omitted). Whether analyzed as a jurisdictional or a substantive issue, the test is applied as described above.
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assumed that Congress authorized that plaintiff to sue.’” Match-E-Be-Nash-She-Wish Band, 132 S. Ct. at 2210) (internal citation and quotations omitted).
Normally, the plaintiff in a suit challenging the denial of an employment-based visa petition in federal court is the petitioning employer. At the administrative level, a regulation bars an appeal by a beneficiary for purported lack of standing. See 8 C.F.R. § 103.3(a)(1)(iii)(B).22 However, this regulation does not apply to the standing analysis in a federal court case and some noncitizen beneficiaries have brought successful challenges to denials of employment-based visa petitions. Courts that have ruled favorably have held that a beneficiary of an employment-based immigrant visa petition (Form I-140) is within the zone of interests of the applicable sections of the INA and thus has standing to sue to challenge the petition denial. See Patel v. USCIS, 732 F.3d at 637 (beneficiary has standing to challenge I-140 denial because his interest in receiving visa places him within the zone of interests); Taneja v. Smith, 795 F.2d 355, 358 n.7 (4th Cir. 1986) (holding that where DOL has certified that the employment of the foreign worker would have no adverse impact on U.S. workers and the prospective employer had filed the I-140, then the beneficiary has an interest in the visa classification.)23 See also Shalom Pentecostal Church, 783 F.3d at 164 (noting that for various reasons special immigrant religious workers have an even greater interest in the petition than foreign nationals in some of the other employment-based categories). But see Vemuri v. Napolitano, 845 F. Supp. 2d 125, 131-32 (D.D.C. 2012) (beneficiary not within the zone of interests because his interests were “inconsistent with” congressional intent in protecting U.S. workers with the labor certification requirement applicable to his employment-based visa category); Pai v. USCIS, 810 F. Supp. 2d 102, 107, 111 (D.D.C. 2011) (beneficiary abroad lacked concrete injury because uncertain when/whether could enter the United States to work for the petitioner; not within the zone of interests because Congress intended that the labor certification requirements applicable to her employment-based visa category primarily protect “American labor” and protect employers’ right to hire foreign workers if no qualified/available U.S. workers.)
22 In November 2017, USCIS created a limited exception to its regulatory prohibition against the participation of beneficiaries in administrative proceedings involving petitions filed by employers. See Matter of V-S-G, Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-11-11-PM-602-0149-Matter-of-V-S-G-Inc.-Adopted-Decision.pdf; Guidance on Notice to, and Standing for, AC21 Beneficiaries about I-140 Approvals Being Revoked After Matter of V-S-G, Inc. (“VSG PM”), PM-602-0152 (Nov. 11, 2017), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-11-11-PM-602-0152-Guidance-Beneficiary-Standing-Matter-of-V-S-G.pdf. USCIS now will give notice of its intent to revoke or notice of revocation of an I-140, if a beneficiary previously submitted a porting request which USCIS “reviewed and favorably adjudicated.” See VSG PM, id. at 9, revision to AFM, ch. 20.3(b), (b)(1). 23 For practitioners in a circuit where the issue of beneficiary standing has not been decided, it may be helpful to draw analogous arguments from cases where the courts have held that beneficiaries of family-based visa petitions are within the “zone of interests.” See, e.g., Bangura, 434 F.3d at 499-500; Abboud v. INS, 140 F.3d 843, 847 (9th Cir. 1998).
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With respect to the revocation of a previously-approved employment-based immigrant visa petition (I-140), courts have held that the beneficiary falls within the zone of interests and thus has standing to sue over USCIS’ failure to comply with procedural prerequisites for revocation. See, e.g., Mantena v. Johnson, 809 F.3d 721, 731-32 (2d Cir. 2015) (I-140 beneficiary who “ported” to new employer has a statutory interest in receiving notice (either to her or her new employer) of USCIS’ intent to revoke the petition); Kurapati v. USBCIS, 775 F.3d 1255, 1261 (11th Cir. 2014) (per curiam) (beneficiaries of an approved I-140 (not limited to only workers who “port”) have standing because of their statutory interest in receiving an immigrant visa) (citing Patel, 732 F.3d at 636-38). See also Musunuru v. Lynch, 831 F.3d 880, 888, 890-91 (7th Cir. 2016) (beneficiary had standing to raise pre-revocation procedural claims, but only his current employer was entitled to notice). Reported cases addressing whether beneficiaries of employment-based nonimmigrant petitions have standing are scarce. At least one court found that beneficiaries of H-1B visa petitions have standing because they were within the statute’s zone of interests. Tenrec, Inc. v. USCIS, No. 3:16-cv-995-SI, 2016 U.S. Dist. LEXIS 129638, *21-22 (D. Or. Sept. 22, 2016) (H-1B petition beneficiaries have constitutional standing and are within the zone of interests because approval gives them “the right to live and work in the United States and imposes obligations such as complying with “extensive regulations” on their conduct; they also have the potential for future employment with a new petitioner). Still another court found that an L-1A petition beneficiary had standing because of the harm he would suffer from a denial of the petition. Ore, 675 F. Supp. 2d at 223 (L-1A petition beneficiary had constitutional standing because he would benefit from being able to enter the United States to work, which the petition denial harmed, and the court could redress). However, other courts have found that beneficiaries of nonimmigrant visa petitions do not have standing. See, e.g., Commonwealth Utils. Corp. v. Johnson, 245 F. Supp. 3d 1239, 1255-58 (N. Mar. I. 2017) (CW-1 petition beneficiaries are not within the zone of interests because nothing in the law indicates congressional intent authorizing them to challenge the agency’s petition selection process; they have no right to be admitted to this U.S. territory to work temporarily); Hispanic Affairs Project v. Perez, 206 F. Supp. 3d 348, 368 (D.D.C.) (H-2A sheepherders not within the zone of interests because congressional intent was to protect U.S. workers), modified, 319 F.R.D. 3 (D.D.C. 2016);24 Cost Saver Mgmt., LLC v. Napolitano, No. CV 10-2105-JST, 2011 U.S. Dist. LEXIS 156096, *11-12 (C.D. Cal. June 7, 2011) (L-1A petition denial did not injure beneficiary outside the United States because only the prospective employer had a legally protected interest in the petition).
24 The district court concluded it was bound by Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014), which held that Congress clearly intended to protect U.S. workers from being adversely affected by the employment of H-2A workers. Id. at 368. (The court granted reconsideration as to the plaintiff association’s standing to sue on its members’ behalf because it had U.S. worker members, specifically lawful permanent residents. See 319 F.R.D. at 7-8.) But there were no H-2A worker plaintiffs in Mendoza, and their interests are not mutually exclusive of U.S. workers’ interests. See Tenrec, 2016 U.S. Dist. LEXIS 129638, *25 (“The D.C. Circuit did not, however, find that the INA's H–2A provisions were only concerned with American workers.”) (Emphasis in original).
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A few courts have held that the beneficiary of a labor certification application has standing. See De Jesus Ramirez v. Reich, 156 F.3d 1273, 1276 (D.C. Cir. 1998) (finding standing where there was no statutory indication that Congress intended to preclude beneficiaries from suing; but affirming petition denials because employers did not comply with DOL review requirements); Stenographic Machines, Inc. v. Reg’l Adm’r Employment & Training, 577 F.2d 521, 528 (7th Cir. 1978) (noting that the test is whether plaintiff is within the zone of interests to be protected or regulated, and finding that beneficiary satisfied both) (emphasis added).25 In so holding, the Seventh Circuit emphasized that the test could be met by showing that the plaintiff fell within the zone of interests either “protected” or “regulated” by the statute. Id. (citing Data Processing, 397 U.S. at 153). Even though a beneficiary may be found to have standing to sue, he or she nevertheless may lose an appeal if the visa category requires continued sponsorship, but the employer (or prospective employer) is no longer committed to hiring the beneficiary. Since an I-140 beneficiary who has “ported” to new employment does not require the petitioning employer’s continued support, the beneficiary’s independent interest in the approved I-140 is easier to establish in these cases.
2. Defendants The APA specifies that an action seeking mandatory or injunctive relief “shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance.” 5 U.S.C. § 702. Accordingly, an APA action would name as a defendant the specific individual within DHS who is authorized to carry out any injunction or other mandatory order of the court. In the case of visa petition denials, this individual usually would be the Director of USCIS.26 Similarly, a mandamus action could name the official with ultimate authority over the action that the suit seeks to compel (such as, for example, the Director of USCIS), as well as the director of the particular office responsible for taking the action. In both types of cases, the defendants are named in their official capacities. VI. Relief A. Non-Monetary Damages A prevailing party in an APA or mandamus action does not receive money damages. The relief sought will depend upon the nature of the claim. If the USCIS denial was wrong as a matter of law, the court can vacate the denial and approve the petition. If the challenge is to USCIS’ 25 As these decisions predate Lexmark, 134 S. Ct. at 1386-89, they discuss whether the beneficiaries had “prudential standing.” See n.21, supra. They also predate the current system for permanent employment certification. See 20 C.F.R. Part 656. However, the regulatory change in the certification process does not affect whether the beneficiary’s interest falls within the statute’s zone of interests. 26 Some attorneys also name the Director of the Service Center who issued the denial. For further information on who should be named as defendants, see American Immigration Council and National Immigration Project of the National Lawyers Guild Practice Advisory, Whom To Sue and Whom To Serve in Immigration-Related District Court Litigation (May 13, 2010).
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findings of fact or application of the law to the facts, then the court can remand with specific instructions as to how the agency must correct its errors. If mandamus is sought, the complaint should make clear the duty that the court should order USCIS to perform. If applicable, a complaint should include a request for reasonable attorney’s fees under the Equal Access to Justice Act27 and a “catch all” provision, asking the court to order any other relief that the court deems appropriate. B. Standard of Review The standard applied by the court can be critical in a case; among other things, it will determine the level of deference that the court gives to the agency’s interpretation of applicable statutes or regulations. While the relevant standard of review can be specified in a complaint, parties most often urge the court to apply a particular standard in their briefs filed in support of summary judgment. The applicable standard of review under the APA with respect to factual findings and application of the law to the facts depends upon whether agency action is taken after a formal hearing on the record. See 5 U.S.C. § 706(2)(E). Since USCIS’ denial of an employment-based petition does not involve a formal hearing, the standard of review should be whether the agency’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Under the “arbitrary and capricious” standard, the court reviews whether an agency “articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation omitted). See also Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985, 996-97 (S.D. Ohio 2012) (USCIS made “inexplicable errors” constituting a “litany of incompetence that presents fundamental misreading of the record…” and thus failed to articulate “an untainted, satisfactory explanation for the denial that rationally connected the facts to the decision”). However, some courts describe the standard as whether an agency’s findings are supported by “substantial evidence”—which is the standard when the agency decision follows a formal hearing on the record. See 5 U.S.C. § 706(2)(E); Family Inc. v. USCIS, 469 F.3d 1313, 1315-16 (9th Cir. 2006) (USCIS’ finding that the beneficiary was not engaged in primarily managerial duties, and thus not eligible for a multinational manager classification, “is supported by substantial evidence.”) Some federal circuit courts have held that there is not much difference between these two standards. See, e.g., ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1071 (9th Cir. 2015) (defining and comparing the two standards); Ass’n of Data Processing Serv. Orgs. v. Bd. of Governors of Fed. Reserve Sys., 745 F.2d 677, 684 (D.C. Cir. 1984) (“the distinction between the substantial evidence test and the arbitrary or capricious test is ‘largely semantic’”) (citations omitted). Under the “substantial evidence” standard, the court is reviewing whether, based on the record before the agency, a reasonable fact finder would be compelled to reach a different result. See Ursack, Inc. v. Sierra Interagency Black Bear Group, 639 F.3d 949, 958 & n.4 (9th Cir. 2011) (arbitrary
27 See Section VI(C) infra.
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and capricious standard “incorporates” substantial evidence standard, so use substantial evidence standard to review informal agency proceedings); Family Inc., 469 F.3d at 1315. See also Fogo de Chao (Holdings), 769 F.3d at 1147 (substantial evidence standard “not boundless,” but agency not allowed to “close its eyes to on-point and uncontradicted record evidence” without explanation). When reviewing the agency’s factual findings, a federal court is not acting as a fact finder itself. “[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The ‘entire case’ on review is a question of law.” American Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (footnote and citation omitted). In contrast, a federal court exercises de novo review under the APA over purely legal issues. See Wagner v. NTSB, 86 F.3d 928, 930 (9th Cir. 1996). One example of an error of law would be USCIS’s application of an incorrect standard of proof. USCIS is supposed to apply the “preponderance of the evidence” standard of proof in deciding whether a party has submitted sufficient proof of eligibility for the visa classification. See Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010) (noting that preponderance of the evidence is the standard of proof in administrative immigration proceedings unless a different standard is specified by law); see also USCIS Adjudicator’s Field Manual (AFM), ch. 11.1(c). To satisfy the “preponderance” standard, a petitioner or applicant must show that it is “more likely than not” a claim is true based on “relevant, probative and credible evidence.” Matter of Chawathe, 25 I&N Dec. at 376; AFM ch.11.1(c). If USCIS erroneously held a petitioner or applicant to a higher standard, he or she may have a strong basis for arguing that the agency erred as a matter of law and the court would review this issue de novo. Where the issue involves the interpretation of a statute or regulation, the first step is for the court to consider the statutory or regulatory language. Where the language is plain, the court is bound to implement it as written. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (explaining deference with respect to agency interpretation of a statute); Auer v. Robbins, 519 U.S. 452, 461 (1997) (explaining deference with respect to agency interpretation of a regulation). Where the language is ambiguous, the court only can defer to the agency’s interpretation if it is reasonable and if such interpretation falls within the authority Congress gave to the agency. Id. at 843-44. In general, courts are more deferential to agency interpretations issued through a formal binding rule, such as a regulation or a precedent decision. See generally United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). In contrast, courts are less deferential to agency actions that are not formal, binding statements of the agency’s interpretation of the law. See generally Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). In such cases, the level of deference depends upon “the thoroughness evident in [the agency’s] consideration [of the issue], the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Id. See also Fogo de Chao (Holdings), 769 F.3d at 1136 (finding USCIS’ interpretation of its specialized knowledge regulation did not merit deference, in part, because the regulation “largely parrots” the statute).
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As noted, courts must consider the consistency of an agency’s position. Where an unexplained, abrupt change in policy has occurred, a court may find the change arbitrary and capricious, and thus not entitled to deference. A new agency policy may be arbitrary and capricious if it represents an abrupt change in an agency’s pattern of decision-making and is adopted without an adequate explanation of its rationale. See, e.g., Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (finding that in administrative rulemaking, agency must give adequate reason for changing its position, particularly when affected parties have substantial reliance interests in the prior position); Davila-Bardales v. INS, 27 F.3d. 1, 5 (1st Cir. 1994) (holding that BIA’s change of position, even from decisions not formally designated as precedent, which court described as a “zigzag course,” is not permissible where “the agency has failed to explain why it is changing direction…”); Omni Packaging, Inc. v. USINS, 733 F. Supp. 500, 504 (D.P.R. 1990) (in denying immigrant visa petition, INS failed to satisfactorily explain why beneficiary was not a manager, when the agency previously approved an initial nonimmigrant petition and extensions as a manager). See also INS v. Yang, 519 U.S. 26, 32 (1996) (“If an agency announces and follows—by rule or by settled course of adjudication—a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned.”). Thus, in reviewing any decisions that apply a new policy, a court will have to consider whether the abrupt policy change was rationally explained.
C. Attorneys’ Fees under the Equal Access to Justice Act While a request for attorneys’ fees and costs under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) and 5 U.S.C. § 504 et seq., should be listed in the complaint as part of the relief sought, practitioners must file a separate motion for fees and costs with the court within the statutory deadline (unless the parties settle the fee issue). The following are the general requirements for recovering fees and must be included in the motion:
• A showing that the client is the prevailing party, i.e., that the party was awarded some relief by the court. 28 U.S.C. § 2412(d)(1)(A); Buckhannon Board of Care & Home Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598, 603 (2001).28 Examples would include:
o Enforceable judgment on the merits. o Consent decree enforceable by the court in which the government agrees to stop
the alleged illegal activity, even without an admission of guilt or wrongdoing. o Order granting mandamus to adjudicate application to adjust status to lawful
permanent residence.
• A showing that the client meets the “net worth” requirements. 28 U.S.C. § 2412(d)(2)(B).
o For an individual, net worth cannot exceed $2 million when suit filed.
28 While Buckhannon did not involve EAJA, it applies to EAJA motions. See Aronov v. Napolitano, 562 F.3d 84, 89 (1st Cir. 2009) (en banc) (“Buckhannon sets the minimum standards for prevailing party status under the EAJA.”).
Litigation for Business Immigration Practitioners | American Immigration Council | August 2018
18
o For an owner of an unincorporated business, a partnership or a corporation, with certain exceptions, net worth cannot exceed $7 million and cannot have more than a maximum 500 employees when suit filed.
• A showing that the government’s position, either pre-litigation or during litigation, was
not substantially justified. See 28 U.S.C. § 2412(d)(1)(A); Pierce v. Underwood, 487 U.S. 552, 565 (1988) (holding that government’s position must be reasonably based in law and fact); Chiu v. United States, 948 F.2d 711, 715 (Fed. Cir. 1991) (recognizing court’s obligation to consider both the underlying agency action and the agency’s litigation position).
• A showing that there are no special circumstances to make an award unjust. 28 U.S.C.
§ 2412(d)(1)(A). The burden of proof is on the government to establish the existence of special circumstances. United States ex rel. Wall v. Circle C Constr., LLC, 868 F.3d 466, 471 (6th Cir. 2017).
• A statement that includes the total amount of fees and costs requested, accompanied by
an itemized account of the time spent and rates charged. Attorneys must take the time to prepare contemporaneous time records, which describe the work accomplished and the cost incurred. Attorneys also can submit time records for law clerks and paralegals.
Practitioners also need to have a written assignment of fees agreement with the client and, if there are co-counsel, a separate agreement on how the fees will be allocated if awarded by the court or in a settlement agreement. The best practice would be to enter into these agreements at the same time the engagement letter is signed. Without a fee assignment agreement, EAJA fees will belong to the client. See Astrue v. Ratliff, 560 U.S. 586, 596-97 (2010). Finally, motions for fees and costs under EAJA must be filed within 30 days of the entry of final judgment. See 28 U.S.C. §§ 2412(d)(1)(B), (d)(2)(G).29 VII. Conclusion Federal court litigation is an important tool in reaching the goal of more consistent, less restrictive agency decisions. In particular, federal court litigation is an important way to check the agency’s misapplication of the law, which happens all too often in immigration cases. Any attorney who would like to discuss the viability of a federal court challenge in an employment-based immigration case may contact the American Immigration Council at [email protected].
29 For more information on the EAJA requirements, see American Immigration Council and National Immigration Project of the National Lawyers Guild Practice Advisory, Requesting Attorneys’ Fees Under the Equal Access to Justice Act (June 17, 2014).
A plaintiff’s erroneous reliance on the APA as the sole ground of jurisdiction, without
alleging jurisdiction under 28 USC §1331, can result in dismissal of the case. See, e.g.,
Figgens v. CIS, No. 1:05-CV-107 TS, 2006 U.S. Dist. LEXIS 28734 (N.D. Ut. May 8,
2006) (case dismissed where viable ground of jurisdiction was not pled along with the
APA).4
Because an APA action is against the federal government, does the APA
include a waiver of sovereign immunity?
Yes. The United States is immune from suit and can only be sued if there is a specific
waiver of this immunity. The APA includes a statutory waiver of sovereign immunity for
suits that seek non-monetary relief.
The waiver of sovereign immunity, found in 5 USC §702, states:
An action in a court of the United States seeking relief other than
money damages and stating a claim that an agency . . . acted or
failed to act . . . shall not be dismissed nor relief therein be denied
on the ground that it is against the United States or that the United
States is an indispensable party. The United States may be named
as a defendant in any such action, and a judgment or decree may be
entered against the United States.
The waiver of sovereign immunity found in the APA applies to suits that seek relief other
than money damages. Generally, this would include suits for injunctive and declaratory
relief. See, e.g., Trudeau v. FTC, 456 F.3d 178, 186 (D.C. Cir. 2006); Sabhari v. Reno,
197 F.3d 938, 943 (8th Cir. 1999) (challenge to the denial of an immigrant visa petition);
Shah v. Chertoff, No. 3:05-CV-1608-BH (K) ECF, 2006 U.S.Dist. LEXIS 73754, at *5-6
(N.D. Tex. 2006) (challenge to denial of an L-1A visa extension).
The APA’s waiver of sovereign immunity applies to agency action or inaction, including
action or inaction by an agency officer or employee. Several courts have held that this
waiver applies in suits against unlawful agency action even if the suit is not brought
under the APA. Treasurer of N.J. v. United States Dep't of the Treasury, 684 F.3d 382,
399-400 (3d Cir. 2012); Michigan v. U.S. Army Corps of Engineers, 667 F.3d 765, 774-
4 In Figgens, the plaintiffs erroneously relied on INA §279 for jurisdiction. That
statute was amended in 1996 such that it now provides a district court with jurisdiction
only over actions brought by the United States. It does not provide jurisdiction for cases
against the United States. At the same time, however, it also does not bar jurisdiction
that is based on some other ground in suits against the United States. See Sabhari v.
Reno, 197 F.3d 938, 942 (8th Cir. 1999).
6
75 (7th Cir. 2011) (“The waiver applies when any federal statute authorizes review of
agency action, as well as in cases involving constitutional challenges and other claims
arising under federal law.”); Trudeau, 456 F.3d at 186; Presbyterian Church v. U.S., 870
F.2d 518, 524-25 (9th Cir. 1989) (waiver found in a challenge to INS investigation
brought directly under the Constitution).
Are there other jurisdictional grounds that can or must be included in an
APA complaint?
Whether there are other jurisdictional grounds to include in the complaint will depend on
the nature of the lawsuit and the claims that are raised. It is best to include all potential
grounds of jurisdiction.
For example, if you have a claim for mandamus, you will want to include the federal
mandamus statute, 28 USC §1361.5
In contrast, the Declaratory Judgment Act, 28 USC §2201, is a procedural statute that
does not confer jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671
(1950); see also Fleet Bank Nat’l Assoc. v. Burke, 160 F.3d 883, 886 (2d Cir. 1998); State
ex rel. Missouri Highway and Transportation Com’n v. Cuffley, 12 F.3d 1332, 1334 (8th
Cir. 1997). As such, the Declaratory Judgment Act provides for relief rather than for
jurisdiction. The jurisdictional basis for a claim under the Declaratory Judgment Act, as
under the APA, is 28 USC §1331.
5. Cause of Action
What does it mean for the APA to provide a cause of action?
The courts have made clear that, while the APA is not a basis for federal jurisdiction, it
does provide a “cause of action” for parties who have been adversely affected by agency
action. See Bennett v. Spear, 520 U.S. 154, 175 (1997) (stating that 5 USC §7046
provides a cause of action for all “final agency action for which there is no other adequate
remedy in a court”); Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 n.4
(1986) (holding that §704 expressly creates a “right of action” absent clear and
convincing evidence of legislative intention to preclude review); Chehazeh v. A.G. of the
United States, 666 F.3d 118, 125 n.11 (3d Cir. 2012) (citing Oryszak v. Sullivan, 576
F.3d 522, 525 (D.C. Cir. 2009)). 7
5 For more on mandamus actions, see the Legal Action Center’s (LAC) Practice
Advisory “Mandamus Actions: Avoiding Dismissal and Proving the Case” (August 6,
2009), http://www.legalactioncenter.org/sites/default/files/lac_pa_081505.pdf. 6 Section 704 states in relevant part: “Actions Reviewable. Agency action made
reviewable by statute and final agency action for which there is no other adequate remedy
in a court are subject to judicial review.” 7 The Third Circuit has noted that it and other courts may have used the term
“jurisdiction” too “loose[ly]” when dismissing cases for a “lack of jurisdiction” that fail
MANDAMUS ACTIONS: AVOIDING DISMISSAL AND PROVING THE CASE
By The American Immigration Council2
This advisory provides basic information about filing an immigration-related mandamus action in federal district court. It discusses the required elements of a successful mandamus action as well as the jurisdictional concerns that sometimes arise. Mandamus can be a relatively simple and quick remedy in situations where the government has failed to act when it has a duty to do so. However, there are a number of adverse published decisions, some of which are discussed in this advisory. Although it is helpful to understand these cases—and to identify the weaknesses in the courts’ analyses—potential plaintiffs should not be discouraged. Most successful mandamus actions are unreported and/or do not result in written decisions. Often, the filing of a mandamus action prompts the government to take whatever action is requested and the case ultimately is dismissed. I. INTRODUCTION Mandamus can be used to compel administrative agencies to act. The Mandamus Act, codified at 28 U.S.C. § 1361 says, in its entirety:
1361. Action to compel an officer of the United States to perform his duty. The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.
The Mandamus Act authorizes the court to order a remedy. It does not provide independent, substantive grounds for a suit. A mandamus plaintiff must demonstrate that: (1) he or she has a clear right to the relief requested; (2) the defendant has a clear duty to perform the act in question; and (3) no other adequate remedy is available. Iddir v. INS, 301 F.3d 492, 499 (7th Cir. 1 Copyright (c) 2017 American Immigration Council. Click here for information on reprinting this practice advisory. This practice advisory is intended for lawyers and is not a substitute for independent legal advice supplied by a lawyer familiar with a client’s case. The cases cited herein do not constitute an exhaustive search of relevant case law in all jurisdictions. Questions should be directed to [email protected]. 2 The American Immigration Council thanks Theresa A. Queen and Sarah Mathews of Greenberg Traurig, LLP for their assistance in updating this practice advisory.
2002). Under the Mandamus Act, the court may compel the government to take action, but the court cannot compel the agency to exercise its discretion in a particular manner or grant the relief the plaintiff seeks from the agency. II. JURISDICTION AND CAUSE OF ACTION Plaintiffs in a mandamus action may allege subject matter jurisdiction under both the mandamus statute, 28 U.S.C. § 1361, and the federal question statute, 28 U.S.C. § 1331. Generally, it is better to allege both grounds, in part because some courts have confused the issue of subject matter jurisdiction under § 1361, and in part because the same complaint may seek mandamus relief and other forms of relief as well. The Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., does not provide an independent basis for subject matter jurisdiction. See Califano v. Sanders, 430 U.S. 99, 105 (1977). However, the APA provides a basis for the suit when the government unreasonably delays action or fails to act. See 5 U.S.C. §§ 555(b) and 706(1). Thus, the plaintiff may allege the APA as a cause of action. Id. In many cases involving agency delay, the court will accept jurisdiction under 28 U.S.C. § 1331 and grant relief under the APA instead of the Mandamus Act. Therefore, it is important to allege jurisdiction under 28 U.S.C. § 1331 and a cause of action under the APA.3 The court’s subject matter jurisdiction is a separate issue from the court’s authority to grant mandamus relief. Ahmed v. DHS, 328 F.3d 383, 386-87 (7th Cir. 2003). Subject matter jurisdiction is a threshold question that determines whether the court has the power to decide the case in the first place. Id. at 387. The failure to state a valid cause of action calls for a judgment on the merits and not for dismissal for lack of jurisdiction. Bell v. Hood, 327 U.S. 678, 682 (1946). Consequently, after a court has determined that the petitioner’s “claim is plausible enough to engage the court’s jurisdiction,” the court turns to the question of whether it has authority to grant the particular relief. Id.; see also Rios v. Ziglar, 398 F.3d 1201, 1207 (10th Cir. 2005) (holding that district court had jurisdiction where plaintiff alleged immigration agency failed to carry out a ministerial duty, but affirming dismissal because plaintiff did not prove prerequisites for mandamus); Sawan v. Chertoff, 589 F. Supp. 2d 817, 825 (S.D. Tex. 2008) (reasoning that the plaintiff’s claim that pre-interview naturalization application was unreasonably delayed may ultimately fail on the merits, but was not so insubstantial and frivolous as to defeat subject-matter jurisdiction). III. ELEMENTS OF A SUCCESSFUL MANDAMUS ACTION A mandamus plaintiff must establish that
(1) he or she has a clear right to the relief requested; (2) the defendant has a clear duty to perform the act in question; and
3 See also American Immigration Council Practice Advisory, Immigration Lawsuits and the APA: The Basics of a District Court Action.
(3) no other adequate remedy is available. Not all courts analyze these issues the same way, or even consistently. Often, the courts mesh these issues or frame them differently. However, for clarity and completeness, this advisory addresses these issues individually. A. Does the Plaintiff Have a Clear Right? A mandamus plaintiff must show that he or she has a clear right to the relief requested. Sometimes, the courts say that a person has a clear right when he or she falls within the “zone of interests” of a particular statute. This means that the interests the plaintiff seeks “to be protected are within those ‘zone of interests’ to be protected or regulated by the statute… in question.” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 150 (1970).4 In immigration-related mandamus actions, plaintiffs may identify a specific provision of the Immigration and Nationality Act (INA) that creates a clear right to relief. The courts will look to the purpose of the statute—both the specific statutory provision in question, as well as the general purpose of the INA—to determine whether the mandamus plaintiff is an intended beneficiary of the statute. Said another way, the statute should indicate that the government owes a duty to the plaintiff. Courts have found that the INA establishes a clear right to have an adjustment application adjudicated. See, e.g., Razik v. Perryman, No. 02-5189, 2003 U.S. Dist. LEXIS 13818, *6-7 (N.D. Ill. Aug. 6, 2003) (courts have consistently held that INA § 245 provides a right to have an application for adjustment of status adjudicated); see also Iddir, 301 F.3d at 500.5 And, in Yu v. Brown, 36 F. Supp. 2d 922, 930 (D.N.M. 1999), the court said that applicants for special immigrant juvenile (SIJ) status and for adjustment of status “fell within the zone of interest of [these] INA provisions.” See also Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the United States v. Kerry, 168 F. Supp. 3d 268, 281 (D.D.C. 2016) (plaintiffs had a clear right under the Iraqi and Afghan Special Immigrant Visa Program statutes to have their visa applications adjudicated). Courts also have found that the INA establishes a clear right to relief in the context of delayed naturalization applications where the interview has not yet been conducted. See Hadad v. Scharfen, 08-22608, 2009 U.S. Dist. LEXIS 26147, *6-7 (S.D. Fla. Mar. 12, 2009) (finding INA § 335(d) creates a right to have the application for naturalization processed and a decision rendered); Olayan v. Holder, No. 08-715, 2009 U.S. Dist. LEXIS 12825, *11-12 (S.D. Ind. Feb. 4 The zone of interests test was first articulated by the Supreme Court in Data Processing. Although this case addressed the issue of standing, the zone of interests test has subsequently been used by some courts as a way to determine if the plaintiff has a clear right to relief for purposes of mandamus. See Hernandez-Avalos v. INS, 50 F.3d 842, 846-47 (10th Cir. 1995); Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir. 1992). 5 See also Ahmed, 328 F.3d at 388, in which the Seventh Circuit concluded that subject matter jurisdiction existed over a claim to compel adjudication of a diversity lottery visa application, applying its reasoning in Iddir. However, in both Iddir and Ahmed, the court denied mandamus relief on other grounds, i.e., that the government did not have a duty to the plaintiffs.
4
17, 2009) (INA §§ 334(c), 335(b), (d) create right to have naturalization application adjudicated).6 In contrast, several courts have said that the INA does not create a clear right to relief in the context of application adjudication delays. See L.M. v. Johnson, 150 F. Supp. 3d 202, 210-11 (E.D.N.Y. 2015) (INA § 208(d)(7) precludes a private right of action to enforce statutory deadlines for considering asylum applications, so no clear right to relief under Mandamus Act); Bayolo v. Swacina, No. 09-21202, 2009 U.S. Dist. LEXIS 42604, *5-6 (S.D. Fla. May 11, 2009) (plaintiff did not demonstrate a clear right to relief because there is no provision in INA § 245(a) which sets a time limit for the Attorney General or USCIS to decide whether to adjust an applicant's status); Castillo v. Rice, 581 F. Supp. 2d 468 (S.D.N.Y. 2008) (no clear right under INA §§ 101(a)(15)(K)(i)-(ii), 214(d), or 214(r) to expedite scheduling of K-1 or K-3 visa interviews by United States consulates). Courts have similarly held that the INA does not create a right to have removal proceedings initiated. See Campos v. INS, 62 F.3d 311, 314 (9th Cir. 1995); Hernandez-Avalos, 50 F.3d at 847-48; Giddings, 979 F.2d at 1109-10; Gonzalez v. INS, 867 F.2d 1108, 1109-10 (8th Cir. 1989). In these cases, the plaintiffs—noncitizens who were serving criminal sentences—argued that former INA § 242(i) created a clear right to an immediate deportation hearing. Former § 242(i) said that the Attorney General shall initiate deportation proceedings “as expeditiously as possible after the date of conviction.” The courts concluded that this provision was enacted not to benefit the noncitizens, but instead to address prison overcrowding and avoid the costs of detaining noncitizens; thus, the detainees themselves were deemed to be outside the “zone of interest” of the statute.7 Courts have held that when an INA provision specifically disclaims a private right of action, there will be no clear right to relief under the Mandamus Act, but there may be relief under the APA. Specifically, courts have found that the APA’s mandate that agencies must conclude matters presented to them “within a reasonable time” may afford relief for claimants whose 6 Note that Congress has provided a statutory remedy by authorizing judicial intervention when USCIS has not issued a decision within 120 days of the naturalization “examination,” which you can utilize instead of mandamus when applicable. INA § 336(b). See Smith v. Johnson, No. 3:16-CV-00066-GNS, 2016 WL 4030969, at *2 (W.D. Ky. July 26, 2016) (“[I]f an interview is conducted with an applicant, the Court may have jurisdiction if the process is not completed within 120 days of the date of the interview.”) See also American Immigration Council Practice Advisory, How to Get Judicial Relief Under 8 USC § 1447(b) for a Stalled Naturalization Application.
7 The Ninth Circuit initially found that detained immigrants were within the zone of interests protected by former INA § 242(i). Garcia v. Taylor, 40 F.3d 299 (9th Cir. 1994); Silveyra v. Mozhcorak, 989 F.2d 1012 (9th Cir. 1993). In Campos, however, the court held that a subsequent amendment to the INA, which provided that § 242(i) “shall not be construed to create any substantive or procedural right or benefit,” overruled its prior rulings in Garcia and Silveyra. Campos, 62 F.3d at 314 (citing § 225 of the Immigration and Nationality Technical Corrections Act of 1994). See also Hernandez-Avalos, 50 F.3d at 848 (citing § 225 as barring detainees’ standing).
applications have been unreasonably delayed 5 U.S.C. § 555(b). See Villa v. DHS, 607 F. Supp. 2d 359, 365 (N.D.N.Y. 2009) (finding that 5 U.S.C. §555(b) (APA) requires USCIS to adjudicate applications within a reasonable time). For example, although INA § 208(d)(7) precludes a private right of action to enforce the statutory timeframes for consideration of asylum applications, those timeframes may serve as evidence that an adjudication delay is unreasonable for purposes of an APA action. Ibrahim Almandil v. Radel, No. 15cv2166 BTM (BGS), 2016 WL 3878248, at *2 (S.D. Cal. July 18, 2016) (holding that although relief under the Mandamus Act was unavailable to adjudicate asylum application within a statutory time period, claimant may bring an action under the APA, but seven months delay not unreasonable); Ou v. Johnson, No. 15-cv-03936-BLF, 2016 WL 7238850, at *3 (N.D. Cal. Feb. 16, 2016) (denying relief when asylum applicant had been waiting only eleven months); L.M., 150 F. Supp. 3d at 210-11, 213 (Mandamus Act unavailable, APA claim considered, but two year delay adjudicating asylum applications not unreasonable). These decisions took into account the District of Columbia Circuit Court of Appeals’ admonition that a court should not compel agency action when “putting [the plaintiff] at the head of the queue would simply move all others back one space and produce no net gain.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (quoting In re Barr Labs, Inc., 930 F.2d 72 (D.C. Cir. 1991)). B. Is there a Mandatory Duty? In addition to having a clear right to relief, the plaintiff must show that the defendant owes him or her a duty.8 The courts have said that this duty must be mandatory or ministerial, but mandamus actions can be used to compel the government to exercise its discretion in a case where the government has failed to take any action. For example, the court may order the defendant to adjudicate an application or petition. See, e.g., Iddir, 301 F.3d at 500 (duty to adjudicate adjustment of status applications under the diversity lottery program); Patel v. Reno, 134 F.3d 929, 933 (9th Cir. 1997) (duty of consular officer to adjudicate visa application, but no duty owed by the Attorney General or INS officials); Villa, 607 F. Supp. 2d at 363 (duty to adjudicate adjustment application in a reasonable amount of time); Yu, 36 F. Supp. 2d at 932 (duty to process SIJ and adjustment of status applications in a reasonable amount of time). But see Orlov v. Howard, 523 F. Supp. 2d 30, 38 (D.D.C. 2007) (defendants have no duty to increase the pace at which they are adjudicating an adjustment application). Many—though not all—courts correctly distinguish between the government’s duty to take some discretionary action and the actual discretionary decision that the government makes. A court generally will not order the defendant to exercise its discretion in any particular manner. See Silveyra v. Moschorak, 989 F.2d 1012, 1015 (9th Cir. 1993) (“[m]andamus may not be used to instruct an official how to exercise discretion unless that official has ignored or violated ‘statutory or regulatory standards delimiting the scope or manner in which such discretion can be exercised.’”); Nigmadzhanov v. Mueller, 550 F. Supp. 2d 540, 546 (S.D.N.Y. 2008) (the Attorney General has discretion to grant or deny an application, but does not have discretion to simply never adjudicate an adjustment application); see also Soneji v. DHS, 525 F. Supp. 2d 8 See, e.g., Naporano Metal & Iron Co. v. Sec’y of Labor, 529 F.2d 537 (3d Cir. 1976) (duty to issue labor certification); Harriott v. Ashcroft, 277 F. Supp. 2d 538, 545 (E.D. Pa. 2003) (ministerial duty to issue derivative citizenship); Rios v. Aguirre, 276 F. Supp. 2d 1195, 1199-1200 (D. Kan. 2003) (no duty to entertain motion to reconsider).
6
1151, 1155 (N.D. Cal. 2007) (with respect to an APA claim, finding USCIS’ argument that it does not have to adjudicate an adjustment application “not only pushes the bounds of common sense but is also contradicted by a wealth of authority from this and other districts” and citing cases). Rather, the court will order the government to take some action. As a result, be aware that filing a mandamus action may result in a prompt denial of the application by the agency. The question of the defendant’s mandatory duty is closely related to the question of the plaintiff’s clear right to relief, and in many cases, the answer to these questions will be the same. However, just because there is a clear right to relief does not mean that the government has an affirmative duty and vice versa. For example, in Iddir, a mandamus case involving the diversity visa program, the court found that the plaintiffs had a clear right to have their adjustment applications adjudicated, but because defendants had no statutory authority to issue a diversity visa after the fiscal year statutory deadline had passed, the defendants no longer had a duty to adjudicate the applications. 301 F.3d at 500-01.9 Alternatively, in Giddings, the court held that although the INA imposes “a duty on the Attorney General to deport criminal aliens, we stop short of concluding that this created a duty owed to the alien.” 979 F.2d at 1110. In doing so, the court noted the distinction between “imposing a duty on a government official and vesting a right in a particular individual.” Id. (citing Gonzalez, 867 F.2d at 1109). Even if the government has a nondiscretionary duty to adjudicate an application, mandamus is appropriate only if the government fails to act within a reasonable amount of time. See, e.g., Nine Iraqi Allies, 168 F. Supp. 3d at 293-94 (finding unreasonable delay when statutes provided a clear nine-month timeline for adjudicating Special Immigrant Visas for certain Iraqi and Afghan nationals); Karim v. Holder, No. 08-671, 2010 U.S. Dist. LEXIS 30030 (D. Colo. Mar. 29, 2010) (finding plaintiff’s adjustment application was unreasonably delayed pursuant to USCIS’ policy of withholding from adjudication certain applications subject to terrorism-related bars); Kashkool v. Chertoff, 553 F. Supp. 2d 1131, 1147 (D. Ariz. 2008) (finding, after applying 5 U.S.C. § 555(b) (APA), that the nearly six-year delay in adjudicating Plaintiff's adjustment application was unreasonable). Where there is no statutory deadline for adjudicating an application, what is “reasonable” will depend on the circumstances of the case. Courts have found delays in adjudicating immigration applications to be unreasonable when the delays are lengthy. Compare Aslam v. Mukasey, 531 F. Supp. 2d 736, 743 (E.D. Va. 2008) (finding a nearly three-year delay in the adjudication of an adjustment application unreasonable) with Alkenani v. Barrows, 356 F. Supp. 2d 652, 657 & n.6 (N.D. Tex. 2005) (finding 15-month delay was not unreasonable, but noting that decisions from other jurisdictions suggest that delays approximating two years may be unreasonable); see also Dehrizi v. Johnson, No. CV-15-00008-PHX-ESW, 2016 WL 270212, at *5 (D. Ariz. Jan. 21, 2016) (finding that the timeframe in which government grants or denies refugee’s application is not discretionary and holding that material facts existed to suggest the 9 Note, however, that in a similar mandamus action involving the diversity visa program, the Eleventh Circuit did not reach the issue of whether the government had a duty to adjudicate the plaintiff’s adjustment of status application. Nyaga v. Ashcroft, 323 F.3d 906, 915-16 (11th Cir. 2003) (per curiam). Rather, in Nyaga, the court dismissed the case as moot because the fiscal year had ended. In two district court cases where the plaintiffs filed mandamus complaints prior to the end of the fiscal year, relief was granted even though the diversity visa was not issued prior to the end of the fiscal year. See Przhebelskaya v. USCIS, 338 F Supp. 2d 399 (E.D.N.Y. 2004); Paunescu v. INS, 76 F. Supp. 2d 896 (N.D. Ill. 1999).
7
nine-year delay in adjudicating refugee’s application to adjust status was unreasonable). The courts also have found government delays unreasonable when the passage of time causes a plaintiff to become ineligible for the relief sought. See, e.g., Harriott v. Ashcroft, 277 F. Supp. 2d 538 (E.D. Pa. 2003) (granting mandamus where INS unreasonably delayed issuing derivative citizenship); Yu, 36 F. Supp. 2d at 932-333 (granting mandamus where INS unreasonably delayed adjudicating SIJ and adjustment of status applications); but cf. Ahmed, 328 F.3d at 287 (finding no right to relief because delay resulted in plaintiff’s ineligibility, but noting that the result may have differed had plaintiff filed the case while government still had authority to act). A mandamus plaintiff may look to regulations or internal operating procedures to find out if the agency itself has set guidelines.10 Plaintiffs also may look to what the agency’s average adjudication period is; 11 however, just because a delay is “not unusual” does not make it reasonable. See Jefrey v. INS, 710 F. Supp. 486 (S.D.N.Y. 1989). The following factors provide guidance on what is reasonable:
(1) the time agencies take to make decisions must be governed by a "rule of reason"; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.
Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC”) (quoted in Kashkool, 553 F. Supp. 2d at 1143); see also Tufail v. Neufeld, No. 2:14-cv-02545-TLN-CMK, 2016 WL 1587218, at *9 (E.D. Cal. Apr. 20, 2016) (finding “presumptively unreasonable” a delay of over 14 years in adjudicating an adjustment of status application); Latfi 10 However, the agency’s delay may be unreasonable even if it adjudicates an application within the agency-specified timeframe. See Singh v. Ilchert, 784 F. Supp. 759, 764 (N.D. Cal. 1992) (finding that “the mere fact that the INS promulgates a regulation establishing a time period in which applications must be adjudicated does not, in and of itself, mean that an adjudication within the time period cannot constitute unreasonable delay”). 11 For example, USCIS provides processing time reports by office and type of filing at its USCIS Processing Time Information web page.
v. Neufeld, No. 13-CV-05337-BLF, 2015 U.S. Dist. LEXIS 77264, *14-25 (N.D. Cal. June 12, 2015) (applying TRAC factors and finding that USCIS’ six-year delay in adjudicating adjustment application was unreasonable). But see Alaei v. Holder, No. 2:15-cv-08906-ODW (JPRx), 2016 WL 3024103, at *3 (C.D. Cal. May 26, 2016) (“courts have found delays of several years to be acceptable” in adjudicating asylum applications). C. Is There Another Remedy Available? The courts will not grant mandamus relief if the plaintiff has an alternative, fully adequate remedy available. This means that plaintiffs must exhaust their administrative remedies. See, e.g., Cheknan v. McElroy, 313 F. Supp. 2d 270, 274 (S.D.N.Y. 2004); Henriquez v. Ashcroft, 269 F. Supp. 2d 106, 108 (E.D.N.Y. 2003); see also Ortega-Morales v. Lynch, 168 F. Supp. 3d 1228, 1233 (D. Ariz. 2016) (when there was adequate remedy under INA § 360, plaintiff could not use mandamus). Failure to exhaust may be excused, however, when one of the exceptions to exhaustion is established.12 Furthermore, courts generally will not grant relief if the plaintiff has a judicial alternative available. For example, in Bhatt v. Board of Immigration Appeals, the plaintiff asked the court to compel the BIA to adjudicate his motion to reconsider. 328 F.3d 912 (7th Cir. 2003). The court held that to the extent that the plaintiff can challenge the BIA’s inaction, it must do so as part of a petition for review in the court of appeals. Id. at 915 n.3 (citing INA § 242(b)(9)). Similarly, in Kulle v. Springer, the court dismissed a mandamus action that sought to compel discovery in an immigration court proceeding. 566 F. Supp. 279 (N.D. Ill. 1983). The court said that the determinations involving discovery fall within the scope of the judicial review provisions of the INA (former section 106(a)). Id. at 280. In several cases, the government has argued that applicants for adjustment of status are precluded from mandamus when the government has not initiated removal proceedings against them. The government has reasoned that (1) adjustment applicants have not exhausted remedies because they have not re-adjudicated their applications before the immigration court and the Board of Immigration Appeals in removal proceedings, and/or (2) there is (or will be) an alternative judicial forum available after removal proceedings conclude (i.e., petition for review under INA § 242).13 Although some courts have agreed with the government, see, e.g., Sadowski v. INS, 107 12 Failure to exhaust may be excused if: (1) requiring exhaustion of administrative remedies causes prejudice due to unreasonable delay or an "indefinite time frame for administrative action"; (2) the agency lacks the ability or competence to resolve the issue or grant the relief requested; (3) appealing through the administrative process would be futile because the agency is biased or has predetermined the issue; or (4) substantial constitutional questions are raised. See Iddir, 301 F.3d at 498 (citations omitted).
13 Note that an immigration judge has no jurisdiction over the adjustment application of an “arriving alien” in removal proceedings, so no administrative review would be possible, with one exception. The immigration judge would have jurisdiction if, while in the U.S., the foreign national had properly filed an adjustment application with USCIS, had departed from and then returned to the U.S. under advance parole to pursue the previously-filed adjustment application, USCIS denied the adjustment application, and DHS placed the individual into proceedings, either upon his or her return to the U.S. under the advance parole or after
9
F. Supp. 2d 451 (S.D.N.Y. 2000), most courts have implicitly rejected this reasoning, and a few courts have rejected it explicitly. In Iddir, the court said that even though INS may initiate removal proceedings in the future, administrative exhaustion is excused because, inter alia, this situation constitutes an “‘indefinite timeframe for administrative action.’” 301 F.3d at 498-99 (quoting McCarthy v. Madigan, 503 U.S. 140, 147 (1992)). Finally, courts sometimes find that the availability of APA relief precludes granting mandamus relief. See Valona v. U.S. Parole Comm'n, 165 F.3d 508, 510 (7th Cir. 1998) (finding "APA . . . authorizes district courts to 'compel agency action unlawfully withheld or unreasonably delayed' without the need of a separate action seeking mandamus"); Ali v. Frazier, 575 F. Supp. 2d 1084, 1091 (D. Minn. 2008) (dismissing plaintiff’s mandamus claims because the APA provides a remedy for unlawfully delayed agency action); Sawan v. Chertoff, 589 F. Supp. 2d 817 (S.D. Tex. 2008) (same). III. OTHER THRESHOLD ISSUES The following are some jurisdictional and other threshold issues that often arise in immigration mandamus actions. A. Mootness The courts will dismiss a civil action where the plaintiff’s claim is moot. Some courts have found that when an agency fails to adjudicate an application, and, as a result of the passage of time, the applicant becomes ineligible for the benefit requested, the issue is moot. For example, in Nyaga, the plaintiff asked the court to compel the government to adjudicate his adjustment application under the diversity visa program. The court found that the plaintiff was no longer eligible to receive a diversity visa because the fiscal year during which the visa was available had ended. 323 F.3d at 915-16.14 As a result, his claim was moot.15 Id. at 916. Likewise, in Sadowski, the court found that the plaintiff’s claim was moot because he no longer was eligible for derivative beneficiary status, having turned twenty-one. 107 F. Supp. 2d at 454. But see Harriott, 277 F. Supp. 2d at 545 (court ordered government to issue derivative USCIS denied the adjustment application. 8 C.F.R. § 1245.2(a)(1)(ii). See the American Immigration Council’s Practice Advisory, “Arriving Aliens” and Adjustment of Status. 14 The plaintiff filed the complaint after the expiration of the fiscal year for which he had won the diversity visa lottery. The court may have reached a different result if the complaint had been filed before year’s end. See Nyaga, 323 F.3d at 915 n.7 (plaintiff’s case arguably distinguishable from a case where complaint filed before end of year); Paunescu, 76 F. Supp. 2d at 898 (mandamus issued where complaint filed before end of year); see also Przhebelskaya, 338 F Supp. 2d at 405 (motion to compel granted where mandamus issued prior to end of year). But see Keli v. Rice, 571 F. Supp. 2d 127, 135-36 (D.D.C. 2008) (when petitioner filed complaint only ten days before the end of the fiscal year, court held there was not adequate time to intervene before the fiscal year expired). 15 In Iddir, the Seventh Circuit reached the same result, but did not rely on mootness. Rather, the court found that the government did not have a duty to adjudicate the application because the plaintiff was no longer eligible for a diversity visa. 301 F.3d at 501.
citizenship nunc pro tunc where plaintiff alleged very compelling factors and government acted unreasonably). B. Statutory Bars to Review under INA § 242 Section 242 of the INA bars jurisdiction over a variety of different issues in immigration cases. The government often argues that INA § 242(a)(2)(b)(ii) applies to bar jurisdiction over mandamus actions challenging agency delay. This provision bars review of a “decision or action” of the Attorney General or the DHS Secretary when such decision or action “is specified under this subchapter to be in [his or her] discretion.” In many cases, plaintiffs have successfully overcome government motions to dismiss that raise this jurisdictional bar. See, e.g., Labaneya v. USCIS, 965 F. Supp. 2d 823, 827 (E.D. Mich. 2013) (collecting cases); Geneme v. Holder, 935 F. Supp. 2d 184, 190 (D.D.C. 2013) (collecting cases); Sharadanant v. USCIS, 543 F. Supp. 2d 1071, 1075 (D.N.D. 2008). However, some district courts agree that INA § 242(a)(2)(B)(ii) bars jurisdiction. See e.g., Safadi v. Howard, 466 F. Supp. 2d 696, 700 (E.D. Va. 2006) (INA § 242(a)(2)(B) precludes review of a mandamus action to compel adjudication of an adjustment application). The REAL ID Act of 200516 amended INA § 242 to include specific bars to judicial review by mandamus action. The majority of the amendments pertained to judicial review of orders of removal or removal proceedings.17 Courts generally do not review removal orders or removal proceedings by means of mandamus actions. In fact, in one case in which this was tried, the court found that INA § 242(g) barred jurisdiction. The Second Circuit found that the court lacked jurisdiction to compel the government to execute a final order of deportation. Duamutef v. INS, 386 F.3d 172, 180-81 (2d Cir. 2004). Likewise, courts have held that § 242(g) bars a plaintiff from seeking to have removal proceedings commenced. Chapinksi v. Ziglar, 278 F.3d 718, 721 (7th Cir. 2002); Alvidres-Reyes v. Reno, 180 F.3d 199, 205 (5th Cir. 1999). Mandamus is barred when a discretionary decision is covered by INA § 242(a)(2)(B)(i).18 However, for non-discretionary decisions, most courts have found that INA § 242(a)(2)(B)(i) does not apply. Through mandamus, the plaintiff may seek an order compelling the government to take action, but the court will not compel the government to grant or deny an application. Thus, because the plaintiff is not challenging a decision to deny relief, but rather the agency’s failure to act—which is nondiscretionary—the bar does not apply. See Iddir, 301 F.3d at 497-98; but see Safadi, 466 F. Supp. 2d at700 (in combination with other provisions of the INA, § 242(a)(2)(B)(i) demonstrates that the process of adjustment of status is wholly discretionary).
16 Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005). 17 See amended INA §§ 242(a)(2)(A), (B) and (C); added § 242(a)(4); added § 242(a)(5); amended § 242(b)(9); and amended § 242(g). 18 INA § 242(a)(2)(B)(i) precludes judicial review of “any judgment regarding the granting of relief under section 212(h), 212(i), 240A, 240B, or 245.” However, Congress provided an exception for “constitutional claims or questions of law” raised in a petition for review “filed with an appropriate court of appeals.” INA § 242(a)(2)(D).
11
C. Consular Nonreviewability If a person is seeking to compel a consular officer to process an application or petition abroad, the government likely will argue that such a claim is barred under the doctrine of consular nonreviewability. The courts generally have held that they lack authority to review consular decisions. See, e.g., Kerry v. Din, 135 S. Ct. 2128, 2140 (2015); Saavedra Bruno v. Albright, 197 F.3d 1153, 1159-60 (D.C. Cir. 1999). However, the law is not firmly settled regarding the applicability of the consular nonreviewability doctrine to mandamus cases. See Ahmed, 328 F.3d at 388. And, in fact, the Ninth Circuit has found that it has authority to grant mandamus relief to compel a consular officer to act on a visa application. In Patel, 134 F.3d at 932, the court remanded for the district court to order the U.S. Consulate in Bombay, India to act on the plaintiff’s visa application. Although the court acknowledged that “[n]ormally, a consular official’s discretionary decision to grant or deny a visa petition is not subject to review,” the court found mandamus jurisdiction when the consul “fail[s] to take an action.” Id. at 931-32; see also Assad v. Holder, No. 2:13-00117, 2013 WL 5935631, *4 (D.N.J. Nov.1, 2013) (Embassy’s failure to make final decision on visa application gives court jurisdiction to grant mandamus). IV. PROCEDURES Mandamus is a civil action and therefore, the Federal Rules of Civil Procedure and the district court’s local rules apply. The local rules are available on the courts’ websites. Whom to Sue and Serve: Because mandamus actions seek to force an officer or employee of the government of the United States to take an action, who is named as a defendant depends on the type of action the suit seeks to compel. For example, a mandamus action to compel the USCIS to adjudicate an application may name the USCIS Service Center Director, Field Office Director, USCIS Director, and the Secretary of DHS as defendants. If security checks conducted by the FBI are cause for the delay, an action may also name the Director of the FBI and the Attorney General. It is better to be over inclusive in naming defendants, and if it is unclear which officer had the duty to act, also name the agency/department or even the United States.19 If the defendant is DHS (or a component or officer within DHS), the complaint must be served on the DHS Office of the General Counsel. For more information about identifying defendants and about service, please see the American Immigration Council’s Practice Advisory, Whom to Sue and Whom to Serve in Immigration-Related District Court Litigation. Venue: Venue for the mandamus action, unless otherwise specified in another statute, can be in the judicial district in which the defendant “resides”; in which a substantial part of the events or omissions giving rise to the claim occurred; or in which the plaintiff resides. 28 U.S.C. § 1391(e).20 19 If the complaint turns out to be over-inclusive, the court may dismiss the improperly named defendants and continue with the proper defendants. See Patel, 134 F.3d at 933. 20 The government has challenged venue when the action is brought where the plaintiff resides, arguing that a noncitizen plaintiff, even if a lawful permanent resident, does not “reside”
Filing Fee: Parties instituting a civil action in district court are required to pay a filing fee pursuant to 28 U.S.C. § 1914. Complaints may be accompanied by an application to proceed in forma pauperis if the plaintiff is unable to pay the filing fee. Injunctive/Declaratory Relief: A mandamus suit is an action for affirmative relief, as compared to injunctive relief, which typically seeks to prohibit improper action. Although 28 U.S.C. § 1361 does not authorize injunctive relief, mandamus jurisdiction permits a flexible remedy. Furthermore, the same complaint may request declaratory, injunctive, and mandamus relief. For example, the court could declare a policy or regulation illegal, enjoin its enforcement, and order affirmative relief all at the same time. Sample Mandamus Complaints: Links to three sample mandamus complaints prepared by AILA members Dree Collopy,21 Robert Pauw,22 and Thomas K. Ragland and Patrick Taurel—to compel the adjudication of a Form I-485 adjustment application (mandamus and declaratory judgment), a Form I-130 immediate relative petition (injunctive and mandamus relief) and a Form I-526 immigrant petition for alien entrepreneur (for EB-5) (mandamus and declaratory judgment)—are provided for reference.
in the United States for purposes of venue. Some courts have rejected this argument, see, e.g., Kumar v. Mayorkas, No. 12-06470, 2013 U.S. Dist. LEXIS 135924, *9-14 (N.D. Cal. Sept. 23, 2013); but others have agreed. See Ou v. Chertoff, No. C-07-3676 MMC, 2008 U.S. Dist. LEXIS 108848, *3-4 (N.D. Cal. Mar. 12, 2008) (finding, for venue purposes, an “alien is ‘assumed not to reside in the United States’" and transferring case to district court in Washington, DC) (internal citations omitted)); Ibrahim v. Chertoff, No. 06-2071, 2007 U.S. Dist. LEXIS 38352, *13 (S.D. Cal. May 24, 2007) (for venue purposes, nonresident aliens do not "reside" in any district, but nevertheless finding venue because events significant to the case occurred in the district). When the government challenges venue, some courts have found jurisdiction if there is some “act or omission” that can form a basis for venue pursuant to 28 U.S.C § 1391(e)(2). See Ibrahim, id.; Taing v. Chertoff, 526 F. Supp. 2d 177, 180 (D. Mass. 2007) (finding venue where the plaintiff resided in Lowell, Massachusetts; a substantial part of the events giving rise to the claim occurred in Eastern Massachusetts, and the office that denied the application was the USCIS Boston Region/District Office). 21 Reprinted with permission from AILA’s Immigration Litigation Toolbox (AILA 5th Ed. 2015). 22 Reprinted with permission from R. Pauw, Litigating Immigration Cases in Federal Court (AILA 3d Ed. 2013).
MANDAMUS LITIGATION AGAINST DOL TO ADDRESS DELAYS IN
PREVAILING WAGE DETERMINATIONS AND LABOR CERTIFICATIONS This practice advisory addresses how to file a mandamus action in federal district court when the Department of Labor (DOL) has unreasonably delayed issuing a Prevailing Wage Determination (PWD) or adjudicating a labor certification application filed pursuant to the PERM (Program Electronic Review Management) regulations. In recent years, practitioners have become adept at filing mandamus actions to compel the United States Citizenship and Immigration Services (USCIS) to make decisions on applications pending beyond reasonable processing times. Many of these actions met with success and courts have granted mandamus actions over long-delayed adjustment and naturalization applications.2 Through the hard work of local practitioners, there now is a body of case law addressing USCIS's duty to adjudicate applications filed pursuant to the INA. Despite this record of success with USCIS, there is little record of mandamus filings against the DOL in the context of either prevailing wage determinations (DOL Form ETA 9141) or labor certifications for permanent resident applications (DOL Form ETA 9089). Mandamus can be as effective a tool to remedy delays by DOL as it has been for delays by USCIS. This practice advisory outlines basic information about mandamus actions and suggests strategies and practice tips for bringing a mandamus action against DOL. 1 Copyright (c) 2015 American Immigration Council. Click here for information on reprinting this practice advisory. This Practice Advisory is intended for lawyers and is not a substitute for independent legal advice supplied by a lawyer familiar with a client’s case. This Practice Advisory was written by Kristen Harris, Megan Kludt, Leslie Dellon, and Mary Kenney, with contributions from Mikiel Jennifer Davids and Anthony Drago, Jr. 2 See the Council’s Practice Advisories Mandamus Actions: Avoiding Dismissal and Proving the Case (updated Nov. 2015) (hereafter referred to as “Mandamus Actions”) and How to Get Judicial Relief Under 8 U.S.C. § 1447(b) for a Stalled Naturalization Application (updated Oct. 23, 2013) for a more in-depth discussion of remedies for stalled adjustment and naturalization applications.
The federal mandamus statute allows a court to compel a federal agency or officer to perform a nondiscretionary duty that it owes to a plaintiff.3 A mandamus plaintiff must demonstrate that: (1) he or she has a clear right to the relief requested; (2) the defendant has a clear duty to perform the act in question; and (3) no other adequate remedy is available.4 Under the mandamus statute, the court may compel the government to take action, but cannot compel that discretion be exercised in a particular manner, nor grant the result the plaintiff seeks.5 In the DOL context, a mandamus action would assert that: 1) the employer or the noncitizen being sponsored (the beneficiary of the labor certification application), or both, have a right to a decision on the prevailing wage request or the labor certification application within a reasonable period of time; 2) the DOL has a duty to issue a PWD or to adjudicate the labor certification application and this duty to the parties is ministerial and clearly prescribed; and 3) as with DHS/USCIS applications, there is no other adequate remedy available when the DOL delays in issuing a PWD or adjudicating a labor certification application. What is the need for mandamus actions against DOL?
• Prevailing Wage Determinations Based on reports by AILA members, DOL has been relatively consistent in issuing PWDs within 60-70 days for the year to date.6 Delayed issuance can be highly disruptive as the PWD is necessary for the recruitment phase of the labor certification process and in order to file the application.7 For example, where an employer has already begun recruitment, a delay by DOL in issuing the PWD can invalidate the recruitment and the employer will have to start the recruitment process again—unnecessarily increasing an already substantial expense.8
3 The Mandamus and Venue Act of 1962, 28 U.S.C. § 1361. 4 Iddir v. INS, 301 F.3d 492, 499 (7th Cir. 2002). 5 For a more detailed discussion of the mandamus requirements, see Mandamus Actions, supra n.2. 6 See AILA Message Center “thread:”Anyone received a PW determination back from national center yet? DOL’s current posted processing time on the iCERT portal (https://www.icert.doleta.gov) for prevailing wage determinations is 60 days (as of Oct. 13, 2015). 7 See 20 C.F.R. § 656.40; ETA Form 9089, § F, Prevailing Wage Information. 8 The labor certification application must be filed within 6 months (180 days) of recruitment. See 20 C.F.R. § 656.17(e). For recruitment to be valid, either the recruitment process must begin or the application must be filed within the PWD validity period. See In re Karl Storz Endoscopy-America, 2011-PER-00040 (Dec. 1, 2011) (en banc). The PWD validity period cannot be less than 90 days or more than 1 year. 20 C.F.R. § 656.40(c). Employers could find themselves unable to comply with this
Delay in PWD issuance also can result in serious and irreversible consequences for the beneficiary, namely when he or she stands to lose eligibility for a 7th year H-1B extension,9 or has derivative children that are approaching the age of 21.10 These two situations present particularly compelling cases for a mandamus action against the DOL.
• PERM labor certification applications
The DOL has been inconsistent in its ability to timely adjudicate labor certification applications. The inception of the PERM program in 2005 marked the end of the original labor certification system, in which processing delays of several years were not uncommon. Those delays rendered employment-based immigration impossible for many noncitizens who could not maintain lawful status and continue to work in the United States.11 The PERM program initially sped up adjudication times radically, resulting in labor certification application adjudication within 2 to 3 months of filing and oftentimes within a few days, or sometimes as little as a week. Following the centralization of the PERM program, however, PERM processing slowed significantly. In 2009, adjudication times sometimes averaged up to 10 months for unaudited cases and over two years for audited cases. Accordingly, a few AILA practitioners turned to the federal courts for assistance, on the basis that the DOL has a plainly prescribed duty to adjudicate labor certification applications on behalf of US employers and their beneficiaries.
requirement if they began recruitment before PWD issuance, in expectation of a roughly 60 day processing time, but PWD issuance was delayed to the point where the 180 days has expired or the PWD was issued with only a 90-day validity period and the employer could not complete the recruitment in time. 9 To qualify for a 7th year extension based on a pending labor certification application, the application must be filed at least 365 days before the beneficiary reaches the end of the 6th year. See §§ 106(a)(1), (b), American Competitiveness in the Twenty-First Century Act, Pub. L. No. 106-313, as amended by Pub. L. No. 107-273. 10 Note that where time is of the essence and the mandamus action will not be decided by the district court in time to prevent an irreparable injury (such as a child aging out), at least one court was willing to grant an emergency motion for a temporary restraining order, filed as part of a pending mandamus action, and order DOL to adjudicate the application. See Kumykov. v. Carlson, No. 1:09-CV-1217-CAP (N.D. Ga., June 4, 2009), AILA Doc. No. 09071661. 11 While Congress authorized extensions of H-1B status for individuals in the green card process who meet certain requirements, and USCIS recently authorized their H-4 spouses to apply for work authorization, there are no comparable provisions for individuals in other employment-based nonimmigrant classifications who reach the normal limit on their authorized period of stay.
4
As of October 2015, DOL has a posted processing time of roughly 7 months for unaudited cases, but roughly 15 months for audited cases.12 Given DOL’s history, including the outright suspension of PWD issuance in 2011, without regard to the consequences for employers and beneficiaries, practitioners must remain vigilant and prepared to use mandamus as a remedy when processing times become unreasonable. What are the steps to a successful mandamus action against the DOL?
Generally, a mandamus suit over the delayed issuance of a PWD or adjudication of a labor certification application will be similar to any other mandamus suit.13 Here are some additional tips:
1. Build your facts and administrative record prior to filing a mandamus
action. Given DOL’s long-standing policy against expediting labor certification applications, an expedite request in advance of filing suit would appear to be an exercise in futility.14 However, you should follow DOL’s procedure for submitting a case status inquiry for pending applications.15 Since DOL has not issued a “no-expedite” policy with regard to issuing PWDs, an email request for an expedite as far in advance of filing in federal court as possible, may be helpful.16 Your email request(s) and DOL’s response(s) can be used to show that your client has attempted to use non-judicial means to have the labor certification application adjudicated or PWD issued in a reasonable period of time and, as applicable, in an expeditious manner.
12 The posted processing times, as of Oct. 5, 2015, are March 2015 for analyst review, but July 2014 for applications in the audit process. DOL also acknowledges that for “various reasons, we may be completing the processing of applications filed prior to the month posted on iCERT.” Recent reports by AILA members reflect an average of 6 to 7 months for unaudited cases, with a few longer, but less than 1 year. See AILA Message Center “thread:” Atlanta PERM processing time. The audited cases reported by AILA members reflect an average processing time of 15 months, with an outlier of 17 months. See AILA Message Center “thread:” PERM Audits—Response Times. 13 See Mandamus Actions, supra n.2. 14 “The Office of Foreign Labor Certification (OFLC), as a matter of long standing policy, does not expedite the processing of applications due to the particular circumstances of any individual employer, foreign worker, or a family member.” PERM FAQs, Filing—How to File, FAQ #1. 15 As of the date of this Practice Advisory, DOL has stated as part of the processing times chart that a status inquiry can be submitted for a labor certification application filed more than three months prior to the date posted. The current email address is [email protected]. 16 The current email address is [email protected]. Although not specifically referenced on DOL’s processing times chart, a status inquiry by email would be appropriate if the request has been pending longer than the posted processing time.
2. Assess whether your case is appropriate for judicial review.
Under the mandamus statute, the court may order DOL to issue a decision, but cannot compel a favorable decision for your client. A negative outcome would be the DOL’s swift denial of your client's labor certification application17 or issuance of an unfavorable PWD.18 Since the only relief you are seeking in a mandamus action is that the agency issue the PWD or decide the application, either of these actions would moot the mandamus action, after which the government would move to dismiss. An adverse decision in a mandamus case also has the potential to create bad law in your district. Thus, this is a remedy that should be reserved for seriously delayed cases, particularly those that are sympathetic and clearly approvable.
3. Prepare your argument, emphasizing your client's legal right to have the prevailing wage determination made or the labor certification application adjudicated and DOL's legal duty to make these decisions.
• Employer and/or beneficiary’s legal right to PWD or decision on a labor
certification application: The statutory and regulatory scheme makes clear that employers may petition for immigrant visas for foreign workers.19 A labor certification is an essential first step in this process for most employment-based immigrant visa categories and the PWD is a mandatory part of the labor certification process.20 Moreover, the adjustment of status provision requires that an adjustment applicant must be admissible and that a visa must be immediately available.21 Without a labor certification, the foreign worker will be inadmissible
17 Although outside the scope of this Practice Advisory, be aware that DOL requires a denial by the Certifying Officer to include advice that “failure to request review within 30 days of the date of determination, as specified in § 656.26(a), constitutes a failure to exhaust administrative remedies.” 20 C.F.R. § 656.24(e)(3). Therefore, an employer who filed suit in federal court over a denial without complying with DOL’s administrative review process would likely find its case dismissed unless the employer met one of the exceptions to the exhaustion doctrine, such as where seeking administrative review would be futile. For a list of the exceptions, see Iddir, 301 F.3d at 498 (citations omitted). When a beneficiary has sued to overturn the denial, without the employer’s participation, some courts have refused to apply the exhaustion doctrine, but have dismissed for lack of subject matter jurisdiction because no relief can be granted if the employer is not pursuing the application. See DeJesus Ramirez v. Reich, 156 F.3d 1273, 1277-78 (D.C. Cir. 1998) (pre-PERM application). 18 While not specifically referencing exhaustion, DOL also has a mandatory review and appeal process for employers seeking to contest a PWD. See 20 C.F.R. §§ 656.40(h), 656.41; Prevailing Wage FAQs. 19 See, e.g., 8 U.S.C. §§ 1153(b), 1154(a)(1)(F). 20 See, e.g., 8 U.S.C. § 1153(b)(2) (members of the professions holding advanced degrees) and 8 U.S.C. § 1153(b)(3) (skilled workers, professionals and other (unskilled) workers). See also supra n.7. 21 8 U.S.C. § 1255(a).
in most employment-based immigrant visa categories, and no visa will be issued. Without a PWD, the labor certification cannot be filed in the first place.
• DOL's duty to adjudicate the labor certification and make prevailing wage determinations: Congress gave the Secretary of DOL the responsibility to determine and certify the factual questions underlying a labor certification.22 DOL’s own regulations make clear that its statutory responsibility imposes a mandatory duty to decide applications and issue PWDs.23
• Time frame for adjudicating cases: Some courts have held that for a mandamus to be granted a plaintiff must show either that 1) the right that is owed to the plaintiff is the right to have an application decided within a certain time frame; or 2) that the agency’s duty must require it to act within a certain time frame.24 The INA does not impose a specific time period on DOL to process PWDs or labor certification applications, just as it does not impose on USCIS a time frame for deciding adjustment and naturalization applications. However, some courts have held that because § 555(b) of the Administrative Procedure Act (APA) mandates that an agency act within a reasonable time, the underlying statute and regulations do not need to contain time frames; a reasonable period of time is presumed.25 Courts frequently apply the factors enumerated in the leading case of Telecommunications Res. and Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984), to determine whether an agency’s delay is so unreasonable that the court should grant mandamus relief. You should develop your case with these factors in mind.
22 8 U.S.C. § 1182(a)(5); see also Yasin v. Bartlett, No. 04-994, 2004 U.S. Dist. LEXIS 28638, *4-5 (S.D. Tex. Oct. 25, 2004) (concluding that the only way DOL can carry out its statutory responsibility is to process applications and that this duty is mandatory). 23 See, e.g., 20 C.F.R. §§ 656.17(b), 656.24. 24 See, e.g., Lake Michigan College v. DOL, No. 1:09-327, 2009 U.S. Dist. LEXIS 37184, *12-13 (W.D. Mich. May 1, 2009) (finding that, because the INA does not contain a mandatory time frame for a decision, the plaintiffs did not establish a “clear and certain claim to an ‘immediate’ adjudication of their labor certification.”). 25 See, e.g., Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105, 114 (D.D.C. 2005) (Relying on APA as the basis for a reasonable time requirement, but concluding on the “intertwined” merits that delay was reasonable based on DOL’s explanation and “good faith efforts” to reduce the delay); Yasin, 2004 U.S. Dist. LEXIS 28638 at *5 (Also relying on APA, but finding DOL delay unreasonable and directing adjudication of pre-PERM labor certifications). But see Lake Michigan College, 2009 U.S. Dist. LEXIS 37184 at *14-16 (dismissing mandamus and APA claims after finding that neither the INA nor the APA provide any guidelines for determining when a delay in processing a labor certification becomes unreasonable).
7
4. Research DOL policy regarding PERM cases and PWDs for factual support for your claim that DOL has unreasonably delayed deciding your client’s labor certification application or PWD.26
• Look to aspirational language regarding the amount of time required to adjudicate
cases under the PERM system. In the Supplementary Information to the PERM regulations published in December 2004, DOL stated that “an electronically filed application not selected for audit will have a computer-generated decision within 45 to 60 days of the date the application was initially filed.” 69 Fed. Reg. 77326, 77328 (Dec. 27, 2004). Contrast with the processing times that are posted on the DOL iCERT website and with how much longer your client’s application has been pending than either of these measures. Statements made by DOL in recent Stakeholder Meetings or during AILA/DOL Liaison Committee Teleconferences regarding current processing times also may help you demonstrate the unreasonableness of the delay in adjudicating your client’s application. If helpful, you can append the minutes of the meetings or teleconferences provided by AILA as an exhibit to your case and highlight the relevant language. .
5. Marshal your client’s most compelling facts.
What is the harm to the employer and to the beneficiary if DOL does not issue a decision? Also look to the impact of the delay on the beneficiary’s family members and on the community where the employer is located or the beneficiary resides. Including evidence of all of the adverse impact factors, even on those who are not parties to the suit, will increase the likelihood of success in your case.
6. Draft your complaint, telling your client’s story clearly and persuasively.
The complaint will be the first document read by the local Assistant U.S. Attorney (AUSA), who is assigned your case. As with other federal court litigation, your “Plan A” is to persuade the AUSA, ideally even before the first status hearing, that the government should resolve the case internally. This saves your client – as well as the agency and the court – time and money. Therefore, draft the complaint as though it will be the first and last substantive pleading in your case, since you hope it will be.
The complaint also will serve as the point of reference when you pick up the telephone and call the AUSA assigned to your case. The complaint containing a real story is more likely to be remembered.
7. Name all of the appropriate parties in your complaint.
26 For further discussion on when a mandamus action is appropriate, see Jeff Joseph, et al., Thinking Outside the Bureaucratic Box: Using the Federal Court to Challenge Unlawful Agency Action, Immigration & Nationality Law Handbook 409, 413-18 (AILA 2009-10 ed.).
8
a. Plaintiffs The employer, and arguably the beneficiary, would have standing to sue over the delayed adjudication of the labor certification application, as both would be harmed by the delay. With respect to visa petitions and pre-PERM labor certification applications, the government has argued that the beneficiary does not have standing to sue because he or she does not have an interest in the filing. Several courts of appeals have rejected the government’s position in visa petition27 and pre-PERM labor certification cases.28 Moreover, it is only necessary for one plaintiff to have standing.29 Thus, where both the employer and the beneficiary appear as plaintiffs, it is immaterial whether the beneficiary has standing since the employer unquestionably does.
b. Defendants
In a mandamus action, you need to name an agency officer or employee who can perform the nonministerial duty.30 As of the writing of this practice advisory, the following are the relevant offices at DOL and DOJ:
• Secretary, U.S. Department of Labor; • Administrator and National Certifying Officer, Office of Foreign Labor Certification, U.S. Department of Labor, Employment & Training Administration (for labor certification application mandamus);
• Center Director, Foreign Labor Certification, Atlanta National Processing Center;
• Director, Division of Prevailing Wage and Helpdesk Assistance (for PWD mandamus); and
27 See, e.g., Kurapati v. USCIS, 775 F.3d 1255, 1260-61 (11th Cir. 2014) (employment-based visa petition); Patel v. USCIS, 732 F.3d 633, 638 (6th Cir. 2013) (same); Abboud v. INS, 140 F.3d 843, 847 (9th Cir. 1998) (family-based petition); Ghaly v. INS, 48 F.3d 1426, 1434 n. 6 (7th Cir. 1995) (employment-based petition); Taneja v. Smith, 795 F.2d 355, 358 n.7 (4th Cir. 1986) (same). 28 See, e.g., DeJesus Ramirez, 156 F.3d at 1276 (pre-PERM labor certification); Reddy, Inc. v. DOL, 492 F.2d 538, 543 (5th Cir. 1974) (same); Stenographic Machines, Inc. v. Regional Administrator, 577 F.2d 521, 527-28 (7th Cir. 1978) (same). But see supra n.17, concerning the lack of a remedy if the employer is not pursuing the application. 29 See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006) (“[T]he presence of one party with standing is sufficient to satisfy Article III’s case or controversy requirement.”) (citation omitted). 30 To determine who should be named as defendants and who must be served with the complaint, see the Council/National Immigration Project’s Practice Advisory, Whom to Sue and Whom to Serve (updated May 13, 2010).
8. Determine the correct federal district court in which to file the action and
carefully follow the court's procedure in the filing of your complaint
A mandamus action can be brought in one of three judicial districts: the district in which a defendant “resides;” the district in which a substantial part of the events or omissions giving rise to the claim occurred; or a district in which a plaintiff resides. 28 U.S.C. § 1391(e). If you have never filed an action in district court before, start by reviewing the court’s website. All of the district courts have comprehensive websites, often with step-by-step guides on local procedures. District court actions are filed electronically (e-filed), so you should set up an account and review the e-filing procedures.31 The clerks generally are helpful in providing orientation for first-time users.
9. Work with the AUSA assigned to your case.
Keep in mind that an AUSA may be willing to settle the case. Be cooperative, within reason, to a request for an extension of time as the AUSA may be exploring whether a non-judicial solution is possible. At the same time, be mindful that delay is the reason for the lawsuit and consider the impact that the further delay may have on your client. If the DOL approves the labor certification application or issues the prevailing wage while your case is pending, be prompt about filing a motion to voluntarily dismiss the complaint. However, do not dismiss your complaint until you have received the labor certification Final Determination or the PWD.
10. Long-term practice pointer: Establish a sterling reputation and build long- term professional relationships with your local AUSAs.
From your first filing in federal court onwards, be prepared to support any case you file with thoroughness and hard work. In addition, extend mutual professional courtesy when extensions or the like are requested, provided that such an extension would not adversely impact your client’s case. Many U.S. Attorney Offices will routinely assign immigration cases to the same AUSA or a small group of AUSAs. The development of a healthy and mutually respectful professional relationship with them can prove to be invaluable.
31 See also the Council’s Practice Advisory, Electronic Filing and Access to Electronic Federal Court Documents (April 13, 2009).
The authors wish to thank Adrienne Darrow Boyd, a rising 2L at the University of
Michigan Law School, for her work on updating this advisory, and Marc Van Der Hout for
creating the original outline on which this advisory is based.
2
This advisory discusses the deadline for filing an EAJA fee application and the statutory
requirements for eligibility. In addition, the advisory addresses procedural and substantive
aspects of filing an EAJA fee application, including assignment of fees to counsel and
documenting and calculating fees.
Highlights of this advisory include:
Preparing for Filing an EAJA Fee Application Even Before Commencing Litigation
Have a clear, written agreement with your client (and co-counsel, if any) at the outset of
the representation regarding assignment of fees in the event of a court award or
settlement. As the Supreme Court’s recent decision in Astrue v. Ratliff, 560 U.S. 586,
596-97 (2010) holds, EAJA fees belong to the client, not the attorney, absent a
representation agreement to the contrary.
Keep contemporaneous time records with descriptive billing entries on all time spent by
attorneys, paralegals and law clerks preparing for and litigating the case and an
itemization and description of all costs incurred.
Pursuant to Buckhannon Board of Care & Home Inc. v. West Virginia Department of
Health and Human Resources, 532 U.S. 598, 603 (2001), a judicially enforceable court
order or settlement agreement memorializing a federal court victory is necessary to
establish prevailing party status.
Although EAJA does not require it, it may be advisable to state in the original pleadings
or brief that attorneys’ fees will be requested under EAJA.
Assessing Eligibility and Filing an EAJA Fee Application after Winning in Federal Court
The fee application must be filed within 30 days of entry of final judgment in the action;
i.e., within 30 days after the expiration of time for filing an appeal, or, if an appeal is
filed, within 30 days of entry of final judgment by the court of appeals or Supreme Court.
The fee application must establish that the petitioning party is a prevailing party who has
met the appropriate “net worth” requirements. The application also must allege that the
pre-litigation and litigation position of the government was not substantially justified and
that there are no special circumstances that would make an award unjust.
The fee application must include a statement of the total amount of fees and costs
requested along with an itemized account of time expended and rates charged.
If the fee application is for work performed in more than one court (i.e., district court and
court of appeals), check the relevant case law and local court rules to see where the
application should be filed.
3
If seeking to have the government pay a fee award directly to counsel, consider including
a declaration attesting to the assignment of fees to counsel and, if true, the absence of
federal debt.
II. PROCEDURAL REQUIREMENTS
A. Overview of the Components of an EAJA Fee Application
An application for fees and costs under EAJA should include the following:
A written motion explaining why your client is statutorily eligible (Part V)
A signed declaration executed by each named party attesting that he/she met the
appropriate net worth requirements at the time the action was filed and attesting to
assignment of fees and costs to counsel (Parts V.D and V.II and sample declaration)
Contemporaneous time records and description of costs (Part II.B.)
Evidence of the formula used to calculate the requested fee award (Part VI)
In addition, an application may include:
An application form, if required by local rule
Evidence of prevailing market rates for paralegal or law clerks in your area (Part VI)
Evidence of prevailing market rates for attorneys claiming enhanced rates based on
specialized knowledge (Part VI.B)
Before filing an EAJA fee request, attorneys should have a clear, written agreement with their
client (and co-counsel) regarding who is entitled to the fees in the event of a court award or
settlement. Ideally, this agreement is reached at the outset of the attorney-client relationship.
Fees belong to the client absent a representation agreement to the contrary.
B. Documenting Fees and Costs
1. Compensable Work
In general, fee-shifting statutes like EAJA compensate for time that is “reasonably expended on
the litigation.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (emphasis added). In preparing
the fee request, the petitioning party is expected to exercise “billing judgment,” i.e., “make a
good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise
unnecessary….” Hensley, 461 U.S. at 434.
The initial work performed before the immigration agencies, the immigration court, or the Board
of Immigration Appeals (BIA) is not compensable.3 However, requesting compensation for time
3 See Ardestani v. INS, 502 U.S. 129, 135 (1991); Sullivan v. Hudson, 490 U.S. 877, 892
(1989). Since Ardestani, courts only have allowed recovery of fees for administrative
proceedings where there was a court-ordered remand and counsel’s representation was required
to effectuate the court’s remand order. See Western Watersheds Project v. U.S. Sept. of the
4
preparing litigation is permissible. The Supreme Court has expressly approved compensation for
time spent drafting the initial pleadings and developing the theory of the case. Webb v. Board of
Education, 471 U.S. 234, 243 (1985) (citation omitted).4
A petitioning party who has established eligibility for a fee award is entitled to recover “fees on
fees.” In other words, the party is entitled to compensation for time reasonably expended on
litigating the fee request. Commissioner, INS v. Jean, 496 U.S. 154, 163-165 (1990).
2. Keeping Contemporaneous and Detailed Time Records
The EAJA fee applicant bears the burden of documenting fees and costs. Hensley v. Eckerhart,
461 U.S. 424, 438 (1983). A fee award may be reduced for non-contemporaneous, insufficient
or inadequate documentation. For this reason, it is best to keep contemporaneous time records
indicating: (1) the date; (2) the identity of the timekeeper; (3) a description of the specific task
performed; and (4) the amount of the time spent on the task.5
Include some detail when describing the specific task performed. For example, instead of
“research and drafting legal brief or motion” one might write “research for opening brief” or
“drafting habeas petition.”6
Maintain a list containing the date and description of all costs stemming from the litigation,
including, for example, filing fees, long-distance telephone and facsimile charges,
messenger/courier fees, computer research, and expert witness fees.
Itemize the fees and costs incurred. This will assist the court in determining whether the hours
and costs claimed are reasonable for the work performed. Thus, an EAJA fee application should
Interior, 677 F.3d 922, 926-29 (9th Cir. 2012); Friends of Boundary Waters Wilderness v.
Thomas, 53 F.3d 881, 887-88 (8th Cir.1995). 4 But see LaPointe v. Windsor Locks Bd. of Educ., 162 F. Supp. 2d 10, 18 (D.Conn. 2001)
(reducing fee award for pre-litigation time spent in telephone conferences with client and co-
counsel, drafting memos to file, drafting correspondence to her client because, that court
concluded, “none of these activities were actually spent ‘on the litigation’”). 5 The failure to contemporaneously document time may result in a reduction or
disallowance of EAJA fees. See Hensley v. Eckerhart, 461 U.S. 424, 438 n.13 (1983) (holding it
was proper to reduce the hours of one attorney to account for his failure to keep
contemporaneous time records); see also Castaneda-Castillo v. Holder, 723 F.3d 48, 79-79 (1st
Cir. 2013) (citing Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984)).
The Ninth Circuit has held that, although it prefers contemporaneous time records, they
are not absolutely necessary. In Fischer v. SJB-P.D., Inc., the court held that fee requests “can
be based on reconstructed records developed by reference to litigation files.” 214 F.3d 1115,
1121 (9th Cir. 2000). 6
Hensley v. Eckerhart, 461 U.S. 424, 437 n.12 (1983) (“plaintiff's counsel ... is not
required to record in great detail how each minute of his time was expended. But at least counsel
should identify the general subject matter of his time expenditures”).
31. On , the Church, through its previous counsel, filed an I-360 petition
for the benefit of Pastor . See Exhibit 1. In support of the I-360, the Church submitted
documentary evidence establishing Pastor eligibility for classification as a Special
Immigrant Religious Minister. Specifically, these documents included evidence that it is a bona
fide, non-profit religious organization. In addition, the I-360 petition included other evidence
sufficient to satisfy 8 C.F.R. § 205(m)(11) with respect to Pastor employment as a
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11
minister of the Church for a period in excess of the two years immediately preceding April 1,
2009, with the exception that was not in lawful immigration status nor authorized
to engage in employment within the United States.
32. On July 8, 2009, Christina Poulos, former Director of the USCIS California
Service Center, issued a written decision denying Plaintiff’s I-360 submitted on
behalf. In her denial notice, Ms. Paulos stated that because was not authorized
for employment, Plaintiff could not petition for him pursuant to INA § 203(b)(4). See Exhibit 2.
USCIS did not contest that was otherwise qualified as a Special Immigrant under
the INA and applicable regulations.
33. On March 17, 2010, the USCIS Administrative Appeals Office (“AAO”)
dismissed appeal of the denial of the Church’s petition. In its written decision, the AAO upheld
the denial of the petition because Pastor was not in lawful status while working for the
Church, as required by 8 C.F.R. § 204.5(m). See Exhibit 3.
34. Outside of the authorized employment issue, USCIS has not contested that Pastor
was otherwise qualified as a Special Immigrant under the INA and applicable
regulations. The only bar to approval of the Church’s petition as to Pastor is the
requirement found in 8 C.F.R. § 204.5(m) that prospective Special Immigrant Religious Workers
must “have been working [as a religious minister, or a position that is a religious vocation or
occupation], either abroad or in lawful immigration status in the United States[.]”
CAUSES OF ACTION
35. Plaintiffs re-allege and incorporate paragraphs 1 through 34 by this reference.
36. The regulation at 8 C.F.R. § 204.5(m) contravenes federal statutes and results in
the denial of an I-360 petition even though a beneficiary is qualified under the unambiguous
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12
statutory definition of a special immigrant religious worker pursuant to INA § 101(a)(27)(C).
The regulation is therefore ultra vires as it is in violation of the Immigration and Nationality Act,
Administrative Procedures Act (5 U.S.C. § 701 et seq.), and Due Process Clause of the
Constitution of the United States.
37. The regulation at 8 C.F.R. § 204.5(m) contravenes federal statutes in that it results
in the denial of an I-360 petition even though a beneficiary is qualified under statutory definition
of a special immigrant religious worker pursuant to INA § 101(a)(27)(C). The result of this
regulation and its unique application to religious workers substantially burdens and constitutes
unlawful discrimination against religious organizations and religious workers. The regulation
therefore violates the Religious Freedom Restoration Act (42 U.S.C. § 2000bb et. seq.)
38. The regulation at 8 C.F.R. § 204.5(m) contravenes federal statutes in that it results
in the denial of an I-360 petition even though a beneficiary is qualified under statutory definition
of a special immigrant religious worker pursuant to INA § 101(a)(27)(C). The result of this
regulation and its unique application to religious workers substantially burdens and constitutes
unlawful discrimination against religious organizations and religious workers. The regulation
therefore violates the Free Exercise and the Equal Protection Clauses of the Constitution of the
United States.
39. This Honorable Court has the power to strike down ultra vires regulations. See 5
U.S.C. § 706 (requiring courts reviewing agency rules to hold unlawful and set aside agency
actions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law).
40. The Church is statutorily eligible to petition Pastor as a religious worker.
8 U.S.C. §1153(b)(4) states that “visas shall be made available ... to qualified special
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AILA Doc. No. 18081334. (Posted 8/13/18)
13
immigrants” and Pastor qualifies as a special immigrant as defined at 8 U.S.C. §
1101(a)(27). Accordingly, this Honorable Court has the power to declare the Church’s I-360
petition for Pastor approved under 28 U.S.C. §2201, or in the alternative, remand to
USCIS for adjudication without the ultra vires regulations at 8 C.F.R. § 204.5(m).
41. Defendants’ concerted denial of the Church’s I-360 petition for Pastor
resulted in irreparable harm entitling them to injunctive and other relief.
42. If Plaintiffs prevail, they will seek attorney’s fees and costs, pursuant to
5 U.S.C. § 504 and 28 U.S.C. § 2412.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Honorable Court grant the
following relief:
A. Assume jurisdiction over Plaintiffs’ case;
B. Declare that certain portions of 8 C.F.R. § 204.5(m) are not in compliance with
the INA, and consequently are null and void;
C. Permanently enjoin Defendants from enforcing such offending provisions;
D. Because Plaintiff petition is otherwise approvable, declare Plaintiff
I-360 petition approved as to Plaintiff ;
E. Order the defendants to publish new regulations which are in accordance with the
statutory language of INA §101(a)(27) within 30 days;
F. Award appropriate attorney’s fees and costs to the Plaintiff under the Equal
Access to Justice Act (5 U.S.C. §504, 28 U.S.C. § 2412); and
G. Grant such other relief as the Court deems just, equitable, and proper.
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14
Respectfully Submitted,
Dated: ____________
Document 1 Page 14 of 14 PageID: 14
AILA Doc. No. 18081334. (Posted 8/13/18)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
: Plaintiffs : : v. : : Janet NAPOLITANO, et al., : : Defendants :
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
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ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...........................................................................................................3 I. PROCEDURAL HISTORY .....................................................................................................1 II. STATUTORY AND REGULATORY BACKGROUND ....................................................3 III. STATEMENT OF MATERIAL FACTS NOT IN DISPUTE PURSUANT TO LOCAL RULE 56.1 .......................................................................................................................................3 IV. STANDARD OF REVIEW ..................................................................................................6 V. ARGUMENT............................................................................................................................6
A. There is no genuine dispute of material fact in this case and therefore Plaintiffs are entitled to a judgment as a matter of law that the regulations at issue are ultra vires. ............... 6 B. Because Plaintiffs are entitled to judgment as a matter of law on the ultra vires claim, the Court may provide much of the relief requested by Plaintiffs .................................................. 10
1. Plaintiffs move the Court to declare the offending Portions of 8 C.F.R. § 204.5 to be ultra vires and enjoin Defendants from enforcing those provisions. ..................................... 11 2. Because the offending regulatory terms were the only bar to approval, Plaintiffs move the Court to effectuate approval of the Petition. ................................................................... 13
VII. CONCLUSION ...................................................................................................................14 CERTIFICATE OF SERVICE ......................................................................................................15
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iii
TABLE OF AUTHORITIES Cases
Abington Memorial Hospital v. Heckler, 750 F.2d 242 (3d Cir. 1984) ........................................ 11
Action on Smoking and Health v. CAB, 713 F.2d 795 (D.C. Cir. 1983) ....................................... 11
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................... 6
Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994) ................................................................. 13
: Plaintiffs : : v. : : Janet NAPOLITANO, et al., : : Defendants :
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
COME NOW Plaintiffs,
through undersigned counsel, and hereby request this
Honorable Court enter an order of Summary Judgment pursuant to Federal Rule of Civil
Procedure (“FRCP”) 56(a). Specifically, Plaintiffs argue that the Court rule as a matter of law
that the regulations at issue (8 C.F.R §§ 204.5(m)(4) and (m)(11)) violate the Immigration and
Nationality Act (“INA”). Accordingly, Plaintiffs seek an order declaring the offending
regulations as null and void, enjoining the enforcement of those regulations, and approving
SPC’s Form I-360 Petition for .
I. PROCEDURAL HISTORY
On August 3, 2011, Plaintiffs filed a Complaint in this Court, seeking review of the Form
I-360 Petition for Amerasian, Widow(er), or Special Immigrant, (the
“Petition”) which was denied by the USCIS California Service Center on or about July 8, 2009.
Based on the terms of the denial notices (Cmplt. Exs. 2-3), Plaintiffs put forward three distinct
causes of action: (1) the denial was based upon an ultra vires regulation, 8 C.F.R. § 204.5(m),
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that contravenes the INA’s provisions at 8 U.S.C. § 1101(a)(27)(C) (Cmplt., ¶ 36); (2) that 8
C.F.R. § 204.5(m) violates the Religious Freedom Restoration Act (“RFRA”) (Cmplt. at ¶ 37);
and (3) that § 204.5(m) violates the First Amendment and the Equal Protection Clause of the
United States Constitution (Cmplt. at ¶ 38).
On November 8, 2011, Defendants filed a Motion to Dismiss under FRCP 12(b)(1) and
FRCP 12(b)(6). On January 14, 2013, following extensive briefing and oral argument by both
parties, the Court entered an order denying in part and granting in part Defendants’ motion.
Specifically, the Court ruled that Plaintiffs did not state claims as to their causes of action under
the RFRA and U.S. Constitution and dismissed those claims without prejudice. (See Opinion,
ECF Doc. 26, Jan. 14, 2012, at 17) (the “Opinion”).1 However, the Court ruled that both
Plaintiffs had standing to prosecute this case (Id. at 11-12) and that they had stated a claim that
the regulation at issue was ultra vires under the principles of Chevron U.S.A., Inc. v. Natural
Resources Def. Council, Inc., 467 U.S. 837 (1984). (See id. at 13-17).
On April 30, 2013, counsel for Plaintiffs and Defendants participated in a scheduling
teleconference with the Court where, inter alia, it set forth a dispositive briefing schedule. (See
ECF Docs. 35-36). The Court also advised the parties that in light of the holding in the Opinion
that the regulations at issue are ultra vires, any future briefing should be concise and focus on
any new legal arguments to be made. On May 8, 2013, Defendants filed their Answer (“Ans.”)
and a copy of the Administrative Record2 (“R.”).
1 The Court dismissed each of these claims without prejudice and Plaintiffs accordingly reserve their right to amend their complaint to bring such claims again. Plaintiffs seek judgment on the merits (i.e. that no trial take place) in their favor on their lone remaining claim. 2 Much of Defendants’ submission of the Record includes two I-360 filings that are not at issue in this suit. (See R. at Bates Stamp pp. 185-383) Accordingly, Plaintiffs focus this Motion based on the evidence submitted with the Petition.
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3
In the spirit of the Court’s directive, Plaintiffs accordingly file the instant motion.
II. STATUTORY AND REGULATORY BACKGROUND
Plaintiffs have fully briefed the Court of the relevant statutory and regulatory background
giving rise to this case. (See, e.g., Cmplt. at pp. 7-9; Pls.’ Opp. Defs.’ Mot. Dismiss (“Opp.”),
ECF Doc. No. 9, pp. 1-4). In the spirit of the Court’s directive to concisely frame the instant
dispositive Motion, Plaintiffs incorporate those arguments and explanations previously made as
if set forth herein.
III. STATEMENT OF MATERIAL FACTS NOT IN DISPUTE PURSUANT TO LOCAL RULE 56.1
1. is not a citizen or national of the United States, nor in lawful immigration
status. (Cmplt.; R. at 101-105).
2. was inspected and admitted to the United States as a B-2 nonimmigrant on
or about June 15, 1995. On or about December 16, 1995, his period of authorized stay in
the United States expired. (Cmplt. R. at 107; Ans. at ¶26).
3. While admitted pursuant to his B-2 visa, and following expiry of his authorized stay,
has not obtained employment authorization from the legacy Immigration
and Naturalization Service or USCIS. (Cmplt.; See Ans. at ¶26).
4. The Petition establishes that in 1998, after meeting all applicable educational
prerequisites, was ordained as a faith by
. (Cmplt.; R. at 153-57 ).
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5. The Petition establishes that on September 26, 2000, was organized under the laws
of the as a non-profit corporation. (Cmplt.; R. at 50).
6. The Petition establishes that on or about March 21, 2008, was accorded federal tax-
exempt status under § 501(c)(3) of the Internal Revenue Code, and continued to have this
status to the time of filing the Petition. (Cmplt Ex. 1; R. at 51).
7. On or about April 1, 2009, the Church filed the subject Petition with USCIS, seeking
be classified as a Special Immigrant Religious Worker under INA §
(101)(a)(27)(C) and INA § 203(b)(4). (Cmplt Ex. 1; R. at 31-183).
8. The Petition establishes that is a religious denomination having a bona
fide nonprofit, religious organization in the United States. (Cmplt.; Cmplt. Ex. 1; R. at
31-183).
9. The Petition establishes that, prior to the filing of the Petition, was, for at
least 2 years immediately preceding the time of filing, a member of a religious
denomination having a bona fide nonprofit, religious organization in the United States –
specifically and the (Cmplt. Ex. 1; R. at 153-57).
10. The Petition establishes that at all times relevant to the adjudication of the Petition,
has sought to enter the United States solely for the purpose of carrying on his
vocation as a . (Cmplt. Ex. 1; R. at 10-185 ).
11. The Petition establishes that, for at least two years immediately prior to filing and at all
times relevant to the adjudication of the Petition, has been carrying on his
vocation as a . (Cmplt. Ex. 1; R, at 10-185).
12. On July 8, 2009, Christina Poulos, former Director of the USCIS California Service
Center, issued a written decision denying the Petition. In her denial notice, Ms. Paulos
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stated that because was not authorized for employment in the United
States, the Petition could not be approved. (Cmplt. Ex. 2; R. at 21-29).
13. On March 17, 2010, the USCIS Administrative Appeals Office (“AAO”) dismissed the
appeal of the denial of SPC’s petition. In its written decision, the AAO upheld the denial
of the petition. Specifically, because was not in lawful status while
working for SPC, as required by 8 C.F.R. § 204.5(m), the Petition could not be approved.
(Cmplt. Ex. 3; R. at 1-8).
14. The decisions establish that outside of the authorized employment issue, USCIS has not
contested in its adjudication of the Petition that was otherwise qualified as
a Special Immigrant under the INA and applicable regulations. (Cmplt. Exs. 2-3; R. at 1-
8 and 21-29)
15. The record reflects that the only bar to approval of the Church’s petition as to
are the requirements found in 8 C.F.R. § 204.5(m) that prospective Special
Immigrant Religious Workers
a. must “have been working [as a religious minister, or a position that is a religious
vocation or occupation], either abroad or in lawful immigration status in the
United States[.]” 8 C.F.R. § 204.5(m)(4); and
b. that a petitioner must submit evidence in cases where the beneficiary has been
working in the United States to be “authorized under United States immigration
law.” 8 C.F.R. § 204.5(m)(11). (See generally Cmplt. and its exhibits; R. at 31-
183).
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IV. STANDARD OF REVIEW
Summary judgment must be granted if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FRCP
56(a). A fact is “material” if it will “affect the outcome of the suit under the governing law … ”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” only if it
could lead a reasonable fact-finder to return a verdict for the nonmoving party.” Id. at 248.
The Rule 56 movant bears the initial responsibility of informing the Court of the basis for
its motion, and identifying those portions of the record which it believes demonstrate the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
Fed. R. Civ. P. 56(c)). Then, “when a properly supported motion for summary judgment [has
been] made, the adverse party ‘must set forth specific facts showing that there is a genuine issue
for trial.’” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 56(e)). A party opposing summary
judgment carries a heavy burden – it “must point to concrete evidence in the record” – mere
allegations, conclusions, conjecture, and speculation will not defeat summary judgment. Orsatti
v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995). A mere “scintilla of evidence” in
favor of the nonmoving party, without more, will not give rise to a genuine dispute for trial.
Anderson, 477 U.S. at 252.
V. ARGUMENT
A. There is no genuine dispute of material fact in this case and therefore Plaintiffs are entitled to a judgment as a matter of law that the regulations at issue are ultra vires.
Plaintiffs allege that the sole reason that the Petition was denied was that while
had “been carrying on” his ministerial vocation in the U.S. for at least two years prior to
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the filing of the Petition, did not possess lawful immigration status during that
period and therefore 8 C.F.R. § 204.5(m) necessitated denial. Cf. INA § 101(a)(27)(C). This
allegation is supported by the plain text of USCIS’ decisions denying the Petition. (See Cmplt.
Exs. 2-3). Accordingly, the Court’s inquiry at this stage is limited to the question of whether
those denial decisions, and the regulation mandating those denials, are ultra vires in light of the
applicable text of the INA. See SEC v. Chenery Corp., 332 U.S. 194, 197 (1947) (holding that a
reviewing court may only adjudge the propriety of agency action solely upon those grounds
invoked by the agency). The Court, therefore, is presented with a pure question of law. See
Chevron, 467 U.S. at 842. Summary judgment is particularly appropriate when the dispositive
question to be decided is an issue of law. Flath v. Garrison Pub. Sch. Dist., 82 F.3d 244, 246
(8th Cir. 1996).
The test as announced in , applied when determining whether an agency’s
regulation and corresponding action under that regulation is ultra vires, is broken into two parts.
First, the Court must determine “whether Congress has directly spoken to the precise question at
issue.” Chevron, 467 U.S. at 842. If the statute or the intent of Congress is clear, “that is the end
of the matter, for the court, as well as the agency must give effect to the unambiguously
expressed intent of Congress.” Id. at 842-43 (“Chevron Step One”). The second step of the
Chevron test is, “[I]f the statute is silent or ambiguous with respect to the specific question, the
issue for the court is whether the agency’s answer is based on a permissible construction of the
statute.” Id. (“Chevron Step Two”)
Plaintiffs have fully briefed the Court as to why the regulations at issue violate the
Chevron Step One – that is that the statute and/or intent of Congress is clear as to what kind of
immigrant can be classified as a special immigrant religious worker. (See, e.g., Cmplt. at ¶4,
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Opp. at 11-19). In the spirit of the Court’s directive, these arguments previously made are
incorporated herein.
Briefly restated, Plaintiffs have stated a claim that 8 C.F.R. § 204.5(m), requiring that the
period of an alien’s qualifying employment in the U.S. be “in lawful immigration status” and
supported by evidence of that status, contravenes federal statutes and results in the denial of an I-
360 petition even though a beneficiary is qualified under the unambiguous statutory definition of
a special immigrant religious worker, pursuant to INA § 101(a)(27)(C). (Cmplt. at ¶36; Opp. at
pp. 13-21). The controversial portions of 8 C.F.R. § 204.5(m) modify the statutory phrase
“carrying on” found in INA § 101(a)(27)(C) by imposing a non-statutory requirement that one
must be carrying on his or her qualifying experience either abroad or in lawful immigration
status in order to qualify for the relevant visa classification. Under Chevron, if the phrase
“carrying on” has an unambiguous meaning, those portions of 8 C.F.R. § 204.5(m) modifying
the statutory text are ultra vires.
As the Court noted in the Opinion, the phrase “carrying on” in INA § 101(a)(27)(C) is
unambiguous and includes qualifying work experience in the U.S. even when a beneficiary is
without lawful immigration status. (Opinion at 16). Accordingly, because the statute is neither
silent nor ambiguous, the second prong of Chevron need not be analyzed. In this case, “the plain
text of the statute solely requires that the alien have ‘carr[ied] on’ work without regard to the
legal status of that work.” (Opinion at 16). Under Chevron, the agency must give effect to
Congress’ unambiguously expressed intent and thus cannot modify statutory prerequisites by
conditioning Special Immigrant Religious Worker petitions’ approval based upon an alien’s
immigration status. Because no ambiguity exists – both congressional intent and the meaning of
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“carrying on” are clear – that is the end of the Court’s inquiry as to whether 8 C.F.R. 204.5(m) is
ultra vires. Plaintiffs are thus entitled to judgment on their ultra vires claim as a matter of law.
Alternatively, Plaintiffs also move the Court to hold that the regulatory text at issue runs
afoul of Chevron Step Two – specifically that even if the statutory text was found to be
ambiguous, 8 C.F.R. §§ 204.5(m)(4) and §§ 204.5(m)(11) are not permissible constructions of
the INA. Again, Plaintiffs have briefed the Court on this issue, and incorporate those arguments
into this Motion. (See, e.g., Opp. at 20-21).
To summarize: DHS’ attempted modification of INA § 101(a)(27)(C) is misplaced as a
matter of statutory context because “where Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or exclusion.” Nken v. Holder, 556
U.S. 418 (U.S. 2009). The INA’s two-step process in employment-based immigration has its
own separate and disparate inquiries at each step. See Matter of O--, 8 I. & N. Dec. 295 (1959).
These inquiries are set forth in separate provisions of the INA. Compare INA § 203(b) with INA
§§ 212 and 245. Congress has provided for the governmental interest in preventing intending
employment-preference immigrants who have engaged in unauthorized employment from
adjusting status by specifically setting forth that such aliens may only receive lawful permanent
residence by processing immigrant visas abroad. Compare INA §§ 245(c)(7)-(8) with INA §
212(a) (unlawful employment / violation of nonimmigrant status a bar to adjustment, but not a
ground of inadmissibility). Aliens who have fallen out of nonimmigrant status or engaged in
unauthorized employment may still nonetheless adjust status pursuant to an approved
employment-based petition if they were admitted to the U.S. and periods of such violations do
not exceed 180 days. See INA § 245(k). Congress therefore provided a comprehensive statutory
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scheme in which issues of eligibility for an immigrant visa category are addressed first, and only
then are a beneficiary’s “bad acts” such as working without authorization that render him
inadmissible are addressed, after the immigrant visa petition has been approved.
The text at issue found in 8 C.F.R. § 204.5(m) violates the INA by conflating
requirements to adjust status found at INA § 245 with requirements to receive approval of a visa
petition found at INA § 203(b)(4). Put another way, DHS has incorporated INA § 245(c)(7) and
(c)(8) into § 203(b)(4) by way of regulation, and in so doing created a new requirement for a visa
out of whole cloth. The structure of the INA clearly evidences that Congress did not provide for
a beneficiary’s immigration violations to be considered at the time when a petitioner files a visa
petition, in this or any other employment-based immigrant visa category. Furthermore, by
precluding approval of a special immigrant visa petition in a case where an alien falls just one
day out of status, DHS has rendered nugatory the provisions at INA § 245(k). See Shia Ass’n of
Bay Area v. U.S., 849 F. Supp. 2d 916, 918 (N.D. Cal. 2012) (“SABA”) (holding that 8 C.F.R. §
204.5(4) is “contrary to Congress's explicit mandate in [INA §245(k)]”). Because the regulations
at issue promulgated by DHS are not reasonable interpretations of the INA, they are ultra vires.
Therefore as an alternative to holding that those regulations violate Chevron Step One, the Court
may hold that they violate Chevron Step Two.
B. Because Plaintiffs are entitled to judgment as a matter of law on the ultra vires claim, the Court may provide much of the relief requested by Plaintiffs As argued above, Plaintiffs are entitled to a judgment as a matter of law that portions of 8
C.F.R. §§ 204.5(m)(4) and (11) are ultra vires. Accordingly, the Court should enjoin
enforcement of those provisions. Furthermore, because application of those ultra vires provisions
was the sole reason for denial of the Petition, the Court has the power to declare the Petition
approved or direct Defendants to approve the Petition.
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Per the Complaint, Plaintiffs have requested that the Court 1) declare that certain portions
of 8 C.F.R. § 204.5(m) are not in compliance with the INA, and consequently are null and void;
2) permanently enjoin Defendants from enforcing such offending provisions; 3) declare the
Petition approved as to ; 4) order the Defendants to publish new regulations
which are in accordance with the statutory language of INA §101(a)(27) within 30 days; 4)
award appropriate attorney’s fees and costs to Plaintiffs under the Equal Access to Justice Act;
and 5) grant such other relief as the Court deems just, equitable, and proper.3
At this juncture, Plaintiffs move for summary judgment on the basis that the relevant text
of the INA is unambiguous (Chevron’s Step One). Accordingly, this Court need not direct
Defendants to promulgate new regulations and Plaintiffs do not at this time seek such relief.
Further, because Plaintiffs cannot at this time be considered to be “prevailing parties” under the
Equal Access to Justice Act, a motion for attorneys’ fees and costs would be premature.
Thus the relief requested at this time includes only that 1) the Court declare portions of 8
C.F.R. § 204.5(m) to be ultra vires; 2) enjoin Defendants from enforcing such provisions; and 3)
declare the Petition to be approved. The Court has already indicated that it has the power to
award these forms of relief to Plaintiffs. (See Opinion at 12).
1. Plaintiffs move the Court to declare the offending Portions of 8 C.F.R. § 204.5 to be ultra vires and enjoin Defendants from enforcing those provisions. Under the APA, this Court possesses the power to “hold unlawful and set aside agency
action … in excess of statutory jurisdiction, authority, or limitations[.]” 5 U.S.C. § 706. This
power includes the ability to declare agency-promulgated regulations as ultra vires. See SABA,
849 F. Supp. 2d at 923. Under applicable Third Circuit precedent, the declaration of a regulation
3 Plaintiffs also requested that the Court assume jurisdiction over this case, which has already been granted. (See Opinion).
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as invalid results in the prior regulatory text be given effect. See Prometheus Radio Project v.
FCC, 652 F.3d 431 (3d Cir. 2011) (fn.25); Abington Memorial Hospital v. Heckler, 750 F.2d
242, 244 (3d Cir. 1984) (both citing Action on Smoking and Health v. CAB, 713 F.2d 795, 797
(D.C. Cir. 1983) (recognizing that vacating or rescinding invalidly promulgated regulations has
the effect of reinstating prior regulations)).
In this case, Plaintiffs have established that portions of 8 C.F.R. § 204.5(m) are ultra
vires. An appropriate remedy, therefore, is for the Court to enter an order declaring as much and
striking the November 26, 2008 amendments to that section from the Code of Federal
Regulations. The regulatory text applicable for adjudication of the Petition and all future Form I-
360 petitions for religious workers should be the provisions in effect prior to the amendment. See
8 C.F.R. § 204.5(m) (Jan 1, 2008) available at http://www.gpo.gov/fdsys/pkg/CFR-2008-title8-
vol1/pdf/CFR-2008-title8-vol1-sec204-5.pdf.
Because portions of 8 C.F.R. § 204.5(m) are ultra vires and without legal effect, Plaintiff
SPC and similar petitioners must have their religious worker petitions adjudicated without regard
as to what status their prospective beneficiaries’ acquired the requisite statutory experience.
“National uniformity in the immigration and naturalization laws is paramount: rarely is the
vision of a unitary nation so pronounced as in the laws that determine who may cross our
national borders[.]” Rosendo-Ramirez v. INS, 32 F.3d 1085, 1091 (7th Cir. 1994). See also
Jaramillo v. INS, 1 F.3d 1149 (11th Cir. 1993). Defendants therefore must be enjoined from
enforcing this ultra vires regulation in future cases to promote national uniformity in the
immigration laws.
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2. Because the offending regulatory terms were the only bar to approval, Plaintiffs move the Court to effectuate approval of the Petition. Federal courts have the power to declare the eligibility of an alien with regard to
immigration benefits, at least absent a federal bar to jurisdiction. See McGrath v. Kristensen, 340
U.S. 162, 169 (U.S. 1950). At issue in Kristensen was whether a federal court could declare an
alien to be eligible to apply for suspension of deportation under provisions of the former INA
which prohibited such relief where an applicant is ineligible for deportation. The Court ruled that
because the alien faced an administrative ruling of ineligibility, a final agency decision, the alien
was afforded a judicial determination of his eligibility for citizenship. Id. at 169. Under this
rationale it follows that this Court has the power to rule whether Plaintiff SPC’s Petition for
meets the requirements for approval under the INA. The Court’s inquiry
however, is limited by the terms of the agency’s adjudication of the Petition. Chenery Corp., 332
U.S. at 197. It thus follows then that if the Court has the power to determine the eligibility of an
alien for an immigration benefit, and has the power to review the ultra vires decision of an
agency, then the Court has the power to declare the outcome of a petition seeking classification
for an alien. Plaintiffs seek that the Court approve the Petition, a nondiscretionary application for
an immigration benefit. Camphill Soletane v. U.S., 381 F.3d 143 (3d Cir. 2004). Cf. INA §
242(b) (precluding review of denial of certain discretionary relief falling under the purview of
the Attorney General or Secretary of Homeland Security).
The Court possesses the power to declare an immigration petition improperly denied as
approved. See, e.g., Sanchez-Trujillo v. INS, 632 F. Supp. 1546, 1554 (W.D.N.C. 1986)
(declaring Form I-130 immigration petition to be approved as of date INS had initially rejected
it). Short of declaring the petition itself to be approved, District Courts possess the power to
vacate an order of an agency and accordingly order the agency to approve the applied-for benefit.
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See, e.g, Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994) (ordering USCIS to approve
denied Form I-140 Petition); Gulen v. Chertoff, No. 07-2148, 2008 U.S. Dist. LEXIS 54607,
(E.D. Pa. Jul. 16 2008) (same).
In this case, the sole reason for denial of the Petition was the application of ultra vires
regulations. The Petition substantiates that Plaintiff was otherwise entitled to approval.
Accordingly, because 8 C.F.R. § 204.5(m)(4) requiring that qualifying work experience in the
U.S. be obtained when a beneficiary is in lawful immigration status is null and void, the Petition
must be approved. Because the Court has the power to fashion such relief (see Opinion at 12)
and Plaintiffs are entitled to judgment as a matter of law, they respectfully request the Court to
enter an order in their favor.
VII. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request the Court enter summary
judgment in their favor.
Respectfully Submitted,
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CERTIFICATE OF SERVICE
I hereby certify that on May 8, 2013, I electronically served the foregoing
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT using the CM/ECF system to the