FEDERAL LITIGATION OF BUSINESS IMMIGRATION CASES

1. FEDERAL LITIGATION OF BUSINESS IMMIGRATION CASES Susan R. Bond, Law Office of Susan Bond, PC, Moderator Leslie K. Dellon, Business Litigation Fellow, American Immigration Council Steven A. Sklar, Pusin & Sklar, L.L.C. April 24, 2015

2. Why Litigate? “Abusive aspects” increasing in USCIS Notices of Action (RFEs, NOIRs, NOIDs, Denials) • Reciting facts not from your case • Templates • Careless/shoddy drafting • Citations that don’t support position for which cited • “Backdoor Regulations” • Dramatic policy shifts through denial or revocation

3. Why Litigate? (con’t) • Psychological benefits of a “litigation mindset:” • Awareness of relevant case law challenging agency action strengthens advocacy in RFE/NOID/NOIR replies. • Great antidote if feeling “bullied” by unreasonable RFEs or denials. • Rule of law can be empowering when confronted with the whims of an increasingly hostile adjudication environment.

4. Should you sue? Factors to consider. • Build a solid record, starting with your initial filing. • All relevant facts from petitioner. • Attorney can educate USCIS on applicable statutory and regulatory standards, which will also educate the court. • Court decides reasonableness of USCIS’s decision from evidence presented with the petition. • You CANNOT supplement the record during litigation.

5. Factors to consider (con’t) • Read Notices of Action thoroughly. • Clear error of fact or law? • Legal process error? • Timing • Refiling: When necessary to accomplish client’s objectives. • Motion to reopen/reconsider: within 30 days after denial. • Reopen: New facts. • Reconsider: Decision incorrect, as to “application of law or service policy,” based on evidentiary record when decided.

6. Factors to consider (con’t) • Timing (con’t) • Appeal to Administrative Appeals Office (AAO) • SC Director can treat as motion instead • Slow to adjudicate • De novo. Denial may be affirmed on new grounds. • Expedite? Same criteria as other expedite requests. • Federal Court Statute of Limitations • General six-year limit, 28 U.S.C. § 2401(a)

7. Factors to consider (con’t) • Is your client willing to sue? • Fear of retaliation from “going public” • Are you/your firm prepared? • Council initiative: Request co-counsel assistance (AILA Doc. No. 15012999) • Priorities: USCIS denials of H-1B, L-1A and L-1B petitions.

8. Going to court? • DON’T MAKE “BAD LAW.” • Does petitioner’s evidence meet the “preponderance” standard? • “More likely than not” claim is true based on “relevant, probative and credible evidence.” • Preponderance is the standard of proof in administrative immigration proceedings unless different standard specified by law. • Source: Matter of Chawathe, 25 I & N Dec. 369 (AAO 2010) (precedent decision)

9. Basis for suit • Administrative Procedure Act (APA): Most likely basis for challenging federal agency action. • Why? Because APA creates a “cause of action’ by providing basis to sue federal agency when Congress has not provided basis elsewhere in the law. • Employer must have been harmed by the agency action. • “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. • Can’t use APA if another statute precludes judicial review.

10. Basis for suit (con’t) • APA is not a private right of action. • APA permits a court to provide remedy for a particular type of claim. • Can you go directly to court and “skip” AAO? • General rule: Exhaust all administrative remedies first. If not, court may refuse to review or find no jurisdiction. • APA is an exception. • Plaintiff can only be required to exhaust administrative remedies mandated by either statute or regulation. Darby v. Cisneros, 509 U.S. 137 (1993).

11. Basis for suit (con’t) • INA and DHS regulations do not mandate AAO appeal. • 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 cross-motion no exhaustion required) • Risk still exists of dismissal for failure to exhaust. Educate client—get informed consent.

12. Basis for suit (con’t) • Agency action must be “final.” • “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) • If appeal pending at AAO, don’t file suit. • USCIS has created non-finality and obtained dismissal by issuing RFE after APA action filed. • Net-Inspect, LLC v. USCIS, 2015 U.S. Dist. LEXIS 24951 (W.D. Wash. March 2, 2015) (Dismissed without prejudice-THIRD RFE makes prior H-1B denial non-final.)

13. Parties to suit • Petitioning employer is the usual plaintiff. • Must have “standing to sue.” • Constitution Art. III: Sufficient injury in fact. • Statutory for APA claims: Plaintiff must show— • Within “zone of interests” to be protected (among the interests the statute “arguably” was intended to protect) and • Injuries “proximately caused” by alleged statutory violation. • Non-citizen beneficiary of employment-based (and family-based) visa petition also may have standing to sue.

14. Parties to suit (con’t) • Who to sue? • APA: United States can be defendant. • APA: Action for injunctive or other mandatory relief, must specify federal officer or officers (by name or title) “and successors in office” who can carry out the court order. • Usually, Director of USCIS for visa petition denial, sued in his or her official capacity. • Some practitioners also include the Secretary of DHS or the applicable Service Center Director. See5 U.S.C. § 702.

15. Jurisdiction • APA: Subject matter jurisdiction based on a “federal question,” 28 U.S.C. § 1331. • Also list APA since it waives sovereign immunity and allows plaintiff to sue the federal government (the “sovereign”) re: unlawful agency action for non-monetary damages. • Mandamus, 28 U.S.C. § 1361, may provide alternative basis for jurisdiction. • Judicial authority to compel federal agency or officer to perform a nondiscretionary duty owed to plaintiff.

16. Jurisdiction (con’t) • APA is “trumped” to extent another statute precludes judicial review. See 5 U.S.C. § 701(a)(1). INA contains judicial review bars, so you need to confirm bars not applicable to claims. • USCIS frequently asserts INA § 242(a)(2)(B), and moves to dismiss, claiming no judicial review of agency action “committed to agency discretion by law.” • Usually, statutory eligibility requirements for employment-based visa classifications sufficiently specific to be outside this bar. • Fogo de Chao (Holdings) Inc. v. USDHS, 769 F.3d 1127, 1138 (D.C. Cir. 2014) (no jurisdictional bar to challenging L-1B denial because criteria are in statute).

17. Where to file • Federal district court • Venue, 28 U.S.C. § 1391(e), for suit against the federal government or a federal official acting in official capacity. • Any judicial district where: • a defendant resides, • a substantial part of the events or omissions giving rise to the claim occurred, or • plaintiff resides if no real property involved. • For a business legally able to sue in own name, residence is principal place of business.

18. Relief • APA: Only non-monetary. • What do you want the court to do? • If applicable, request reasonable attorneys’ fees under Equal Access to Justice Act, 28 U.S.C. § 2412(d) & 5 U.S.C. § 504, et seq. • Always include “catch all” provision for court to order any other relief court deems appropriate.

19. Relief (con’t) • Key: Court grants relief ONLY if USCIS’s decision was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. §706(2)(A). • Requires USCIS to: • Articulate satisfactory explanation • Must include “rational connection” between facts USCIS found and its decision. SeeMotor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).

20. Relief (con’t) • Does substantial evidence exist in record to support USCIS’s factual findings? • To win, you must show that based on evidence presented to USCIS, a reasonable fact finder would be compelled to reach different result. • Did the petitioner establish eligibility by a preponderance? • Make sure the court understands the difference from substantial evidence.

21. Relief (con’t) • What kind of deference should USCIS receive as to reasonableness of its interpretation of INA and implementing regulations? • Highest: Substantial (Chevron) deference. Chevron, USA Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984). • USCIS always claims substantial deference, but only applies where agency exercises delegated authority to make binding rules. See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).

22. Relief (con’t) • Brand X (Chevron variant ), Nat’l Cable Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005). • Whether/when judicial interpretation may trump agency • Lowest: Skidmore deference, which usually should apply to USCIS. • For less formal agency actions. Deference dependent on various factors which give “power to persuade,” such as • Thoroughness of consideration • Validity of reasoning • Consistency with earlier and later pronouncements See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

23. Relief (con’t) • No deference • Fogo de Chao, 769 F.3d at 1135-36 (no deference to USCIS interpretation when specialized knowledge regulation “largely parrots” the statute). • Residential Finance Corp. v. USCIS, 837 F. Supp. 2d 985, 996-97 (S.D. Ohio 2012) (USCIS made “inexplicable errors” constituting a “litany of incompetence ...” and thus failed to articulate “an untainted satisfactory explanation for the denial that rationally connected the facts to the decision.”)

24. Other Federal Court Victories • Chung Song Ja Corp. v. USCIS, 2015 U.S. Dist. LEXIS 30088 (W.D. Wash., March 11, 2015): Plaintiffs’ summary judgment motion granted. USCIS abused discretion, ordered to grant H-1B petition. AILA Doc. No. 15031366. • Raj & Co. v. USCIS, No. C14-123RSM (W.D. Wash., Jan. 14, 2015): Plaintiff’s summary judgment motion granted. USCIS abused discretion, ordered to grant H-1B petition. AILA Doc. No. 15022300. • Warren Chiropractic & Rehab Clinic, P.C. v. USCIS, No. SACV 14-0964 AG (C.D. Cal., Jan. 12, 2015): Plaintiffs’ summary judgment motion granted. USCIS H-1B petition denial unsupported by substantial evidence, remanded for further proceedings consistent with order. AILA Doc. No. 15011542.

25. Valuable Resources AILALink, which includes • Litigating Immigration Cases in Federal Court by Robert Pauw (Third Edition, AILA Publications) Council Practice Advisories • Failure to Appeal to the AAO: Does It Bar All Federal Court Review of the Case? (July 22, 2004) • Immigration Lawsuits and the APA: The Basics of a District Court Action (Updated June 20, 2013)

26. Valuable Resources (con’t) Council Practice Advisories • Whom to Sue and Whom to Serve in Immigration-Related District Court Litigation (Updated May 13, 2010) • Mandamus Actions: Avoiding Dismissal and Proving the Case (Aug. 6, 2009) • Mandamus Jurisdiction over Delayed Applications: Responding to the Government’s Motion to Dismiss (Aug. 30,2010) • Requesting Attorney’s Fees Under the Equal Access to Justice Act (Written with NIP/Updated June 17, 2014)

27. QUESTIONS? ? ? ?