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)

• AILA Administrative Litigation Task Force

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 ldellon@immcouncil.org.

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 LDellon@immcouncil.org.

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PRACTICE ADVISORY1

Updated September 26, 2016

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:

1 Copyright © 2016 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. Practitioners are strongly encouraged to conduct independent research to determine if there have been subsequent developments in the law since the publication date of this practice advisory. Mary Kenney and Leslie K. Dellon prepared this update with the assistance of law student intern Franziska Schroder. 2 The AAO is an administrative body that considers appeals from decisions of USCIS officers in certain types of cases. See generally 8 C.F.R. § 103.3. See also “The Administrative Appeals Office (AAO),” https://www.uscis.gov/about-us/directorates-and-program-offices/administrative-appeals-office-aao/administrative-appeals-office-aao. This practice advisory will refer to the AAO as that is the more widely known designation. Note, however, that the regulations were never updated to reflect the creation of the U.S. Department of Homeland Security. See generally 6 U.S.C. §§ 111, 271. The regulations still refer to the “appellate jurisdiction of the Associate Commissioner, Examinations” and to the administrative body as the AAU. See, e.g., 8 C.F.R. § 103.3(a)(1)(iv). 3 This practice advisory is limited to a discussion of exhaustion and the AAO and does not apply to decisions of the Board of Immigration Appeals.

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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

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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.

1 Copyright © 2018 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. Practitioners are strongly encouraged to conduct independent research to determine if there have been subsequent developments in the law since the publication date of this practice advisory. 2 The author wishes to acknowledge the contributions of Denyse Sabagh of Duane Morris, LLP, Christina C. Haines of Erickson Immigration Group, and Melissa Crow, former Legal Director of the American Immigration Council, to an earlier version of this Practice Advisory, and Emily Creighton and Mary Kenney, who assisted with editing this update.

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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 clearinghouse@immcouncil.org.

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).

PRACTICE ADVISORY1

Updated June 20, 2013

IMMIGRATION LAWSUITS AND THE APA:

THE BASICS OF A DISTRICT COURT ACTION

By Mary Kenney

Table of Contents

1. Introduction

What is the Administrative Procedure Act (APA)?

What types of immigration-related claims can be brought under the APA?

2. Forum/Venue

Where is an APA suit filed?

3. Statute of limitations

When can an APA suit be filed?

4. Jurisdiction

What is the jurisdictional basis for an APA suit?

Because an APA action is against the federal government, does the APA include a

waiver of sovereign immunity?

Are there other jurisdictional grounds that can or must be included in an APA

complaint?

5. Cause of Action

What does it mean for the APA to provide a cause of action?

What “agency action” is reviewable under the APA?

6. Limitations on Judicial Review under the APA

No judicial review where another statute specifically precludes review

No review of agency action committed to agency discretion by law

Exhaustion of administrative remedies

Final agency action

7. Parties to an APA suit

1 Copyright (c) 2013 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.

2

Who has standing to bring an APA suit?

Who can be named as a defendant?

8. Standard of Review

What is the scope and standard of review in an APA suit?

9. Discovery

Can discovery be carried out against the government agency in an APA suit?

10. Attorney’s Fees

Is it possible to get attorney’s fees in an APA case?

1. Introduction

Suits under the Administrative Procedure Act (APA) can be an effective means of

challenging unlawful agency decisions or action in immigration cases outside of the

removal context. This practice advisory will discuss the primary issues involved in an

APA suit, with examples of how these issues have been decided in immigration cases and

arguments that can be made to meet the various procedural requirements for an APA

action.

What is the APA?

The APA is a federal statute that regulates federal agency action in a number of ways.

This practice advisory will focus on the provisions of the APA that allow an individual to

sue a federal agency or official in federal district court for unlawful action (including the

unlawful failure to act). The suit must be for non-monetary relief such as an injunction.

The relevant portions of the APA are found at 5 USC §701 et seq.

The APA states that a person who is suffering a legal wrong because of agency action, or

who is adversely affected by agency action within the meaning of a relevant statute, is

entitled to judicial review. 5 USC §702. The APA creates a “cause of action.” It

provides an individual a basis to sue a federal agency where Congress has not specifically

provided such a basis anywhere else in the law. The APA also provides a waiver of

sovereign immunity that allows a person to sue the federal government over unlawful

agency action for non-monetary damages.

The APA is not a jurisdictional statute – it does not give a court the initial authority to

hear the case. In APA cases, jurisdiction will be based on 28 USC §1331, the Federal

Question Statute.

What types of immigration-related claims can be brought under the APA?

3

The APA has been used to remedy unlawful action by immigration agencies in various

types of immigration cases that fall outside of the removal context.2 The following are

just a few examples of successful APA challenges:

Court reversed denial of a religious worker visa petition where it was based upon

the improper application of a regulation, Camphill Soltane v. USDOJ, 381 F.3d

143 (3d Cir. 2004);

Court granted preliminary injunction where there was a reasonable question

whether directives from the Executive Office for Immigration Review (EOIR) to

immigration judges violated the APA, Baharona-Gomez v. EOIR, 167 F.3d 1228

(9th Cir. 1999);

Court reversed denial by United States Citizenship and Immigration Services

(USCIS) of specific consent to pursue special immigrant juvenile status in state

court, Young Zheng v. Pogash, 416 F. Supp. 2d 550 (S.D. Tex. 2006);

Court reversed USCIS denial of an H-1B visa where the Administrative Appeals

Office (AAO) made findings that were not based on evidence in the record and

ignored contrary evidence that was in the record, Fred 26 Importers v. U.S. DHS,

445 F. Supp. 2d 1174 (C.D. Cal. 2006).

2. Forum/Venue

Where is an APA suit filed?

An APA suit is filed in a federal district court. Venue is determined according to 28 USC

§1391(e), which states 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.

An APA suit 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 each district court’s

website.

3. Statute of limitations

When can an APA suit be filed?

All courts that have ruled on the issue have applied the general six-year statute of

limitations for suits against the United States to APA actions.

The APA does not contain a statute of limitations. However, there is a general six-year

statute of limitations for civil actions brought against the United States. 28 USC

2 See Section 6, supra, discussing limits on district court jurisdiction over issues

arising from removal proceedings imposed by section 242(a)(5) of the Immigration and

Nationality Act.

4

§2401(a).3 All courts that have considered the question of what statute of limitations

applies to APA actions agree that the six-year limitations period found in §2401(a) is

applicable (note, however, that there are no cases specifically addressing this issue in the

immigration context). See, e.g., Trafalgar Capital Associations, Inc. v. Cuomo, 159 F.3d

21, 34 (1st Cir. 1998); Polanco v. U.S. Drug Enforcement Administration, 158 F.3d 647,

656 (2d Cir. 1998); Pennsylvania Dept. of Public Welfare v. United States Department of

Health and Human Services, 101 F.3d 939, 944-45 (3d Cir. 1996); Jersey Heights

Neighborhood Assoc. v. Glendening, 174 F.3d 180, 186 (4th Cir. 1999); Dunn

McCampbell Royalty Interest Inc. v. National Park Service, 112 F.3d 1283, 1286 (5th

Cir. 1997); Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir. 1997); Sierra Club v. U.S.

Army Corps of Engineers, 446 F.3d 808, 815 (8th Cir. 2006); Turtle Island Restoration

Network v. U.S. Dept. of Commerce, 438 F.3d 937, 942-43 (9th Cir. 2006); Daingerfield

Island Protective Society v. Babbitt, 40 F.3d 442, 445 (D.C. Cir. 1994).

4. Jurisdiction

What is the jurisdictional basis for an APA suit?

The “federal question” statute, 28 USC §1331, is the basis for jurisdiction in an APA suit

for review of agency action. The APA, 5 USC §§702 et seq., can also be listed in the

jurisdictional section of a complaint. While the APA does not provide an independent

grant of jurisdiction to the court, it does waive sovereign immunity in suits against the

government for injunctive relief. Such a waiver is necessary for the court to exercise its

jurisdiction. See FDIC v. Meyer, 510 U.S. 471 (1994) (sovereign immunity is

jurisdictional in nature).

The APA is not an independent grant of subject matter jurisdiction to the federal courts.

See Califano v. Sanders, 430 U.S. 99 (1977). In contrast, 28 USC § 1331 provides a

general grant of subject matter jurisdiction to federal district courts in civil actions over

“federal questions” arising under the Constitution, laws or treaties of the United States.

The Supreme Court has found that 28 USC §1331 serves as the jurisdictional basis for

federal courts "to review agency action." Califano, 430 U.S. at 105; see also Bowen v.

Massachusetts, 487 U.S. 879, 891 n.16 (1988) (“[I]t is common ground that if review is

proper under the APA, the District Court has jurisdiction under 28 USC §1331”). Courts

of Appeals uniformly agree that 28 USC §1331 is the jurisdictional basis for a suit to

review agency action under the APA. See, e.g., Ana International Inc. v. Way, 393 F.3d

886, 890 (9th Cir. 2004) (finding that this rule applies in the immigration context);

Yeboah v. U.S. DOJ, 345 F.3d 216, 220 (3d Cir. 2003) (SIJS visa case); Sabhari v. Reno,

3 The one exception to the six-year statute of limitations is for suits that accrue

under a statute that was adopted after December 1, 1990, in which case a four-year statute

of limitations is applicable. 28 USC §1658. The APA itself was enacted prior to 1990,

so §1658 would not apply to it. However, it is unclear whether §1658 would apply if the

APA suit challenged conduct as violating a statute that was enacted after December 1,

1990. In such cases, the safer practice would be to file within four years where possible.

5

197 F.3d 938, 943 (8th Cir. 1999) (immigrant visa case); Sigman Coal Co. v. Apfel, 226

F.3d 291, 301 (4th Cir. 2000); Dixie Fuel Co. v. Comm’r of Social Security, 171 F.3d

1052, 1057 (6th Cir. 1998); Trudeau v. FTC, 456 F.3d 178, 185 (D.C. Cir. 2006).

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

7

As a “cause of action,” the APA provides an individual with a basis to sue a federal

agency for unlawful agency action where Congress has not specifically provided such a

basis anywhere else in the law. It also “permits the courts to provide redress for a

particular kind of ‘claim.’” Trudeau v. Federal Trade Commission, 456 F.3d 178, 189

(D.C. Cir. 2006). Because the APA creates this specific cause of action, the Supreme

Court has held that a separate indication of Congressional intent of the right to sue is not

necessary. Japan Whaling Assoc., 478 U.S. at 230 n.4; 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); Central S.D. Cooperative Grazing District v.

Secretary, 266 F.3d 889, 894 (8th Cir. 2001) (“Although [the statute at issue] does not

authorize a private right of action, the [APA] provides for judicial review of agency

action”); Hernandez-Avalos v. INS, 50 F.3d 842, 846 (10th Cir. 1995) (a plaintiff who has

alleged a cause of action under the APA need not rely on an implied right of action under

any other statute).

What “agency action” is reviewable under the APA?

The APA states that a person who is suffering a legal wrong because of agency action, or

who is adversely affected by agency action within the meaning of a relevant statute, is

entitled to judicial review. 5 USC §702. "Agency action" is defined 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 USC §551(13). Thus, for example, an agency action

may include the denial of a visa petition or an application for adjustment. It can also

include the agency’s failure to adjudicate a visa petition or adjustment application.

6. Limitations on Judicial Review under the APA

There are a number of limitations on when a suit can be brought under the APA. The

following section will briefly discuss some of the most frequently encountered of these

various limitations:

No judicial review where another statute specifically precludes review

5 USC §701(a)(1) states that the APA does not apply to the extent that another statute

precludes judicial review. There are a number of bars to judicial review found in the

INA. See, e.g., 8 USC §§212(h) and (i)(2) (precluding judicial review of certain

discretionary waivers); §242(a)(2)(B) (precluding review of certain discretionary

decisions in both the removal and non-removal context); §242(a)(5) (designating a

petition for review in court of appeals as the “sole and exclusive means” of review of a

to satisfy the APA prerequisites. Chehazeh, 666 F.3d at 125 n.11. In accord with this,

the court points out that, in accord with this, “the Seventh and Eighth circuits have

recently held that whether a court has the authority to review a decision of the BIA under

the APA is not a jurisdictional question.” Id. (citing Vahora v. Holder, 626 F.3d 907, 917

(7th Cir. 2010); Ochoa v. Holder, 604 F.3d 546, 549 (8th Cir. 2010)).

8

final order of removal). In all cases, it is important to determine if there is a statutory bar

to judicial review that could impact the APA claim, and if so, exactly what the scope and

impact of that bar is.

One of the more significant INA restrictions on judicial review relevant here is the limit

on review of an order of removal to a petition for review in a court of appeals. INA

§242(a)(5) (stating that a petition for review filed in a federal court of appeals is the “sole

and exclusive means for judicial review” of an order of removal). Several courts have

held that, in addition to barring direct challenges to removal orders by means other than a

petition for review, this section bars district court actions that indirectly challenge

removal orders. Martinez v. Napolitano, 704 F.3d 620, 622-23 (9th Cir. 2012) (involving

a district court challenge to BIA’s determination that a noncitizen ordered removed was

not eligible for asylum); Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011) (finding

that district court mandamus action for order compelling USCIS to decide an I-212

waiver and adjustment application was barred as an indirect challenge to a reinstated

removal order); Estrada v. Holder, 604 F.3d 402, 408 (7th Cir. 2010) (involving a district

court challenge to legacy INS’s rescission of the plaintiff’s LPR status). The distinction

between an independent claim and an indirect challenge turns on the substance of the

relief that the plaintiff is seeking; when a claim challenges “an agency determination that

is ‘inextricably linked’ to the order of removal, it is prohibited by section 1252(a)(5).”

Martinez, 704 F.3d at 622-23 (citations omitted).

A second provision of the INA that impacts APA review is the bar to review of certain

discretionary decisions. INA §242(a)(2)(B). This provision, adopted as part of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.

No. 104-208, 110 Stat. 3009, §304 (Sept. 30, 1996), contains two parts.

o §242(a)(2)(B)(i) bars review over “any judgment regarding the granting of

relief under section 212(h), 212(i), 240A, 240B, or 245.” Prior to 2005, and with

respect to adjustment of status applications under INA §245, the majority of

courts interpreted this section as limiting review over discretionary denials of

adjustment, but not over denials that were based upon nondiscretionary statutory

eligibility issues. Mamigonian v. Biggs, 710 F.3d 936, 944 n. 5 (9th Cir. 2013)

(citing cases).

In 2005, Congress amended §242(a)(2)(B) in the Real ID Act, Pub. L. No. 109-

13, 119 Stat. 302 (2005), by adding language indicating that the jurisdictional

limits in the section apply to agency decisions made outside of the removal

context. Id. at 943. Following this, at least one court of appeals has held that

district courts no longer have jurisdiction to review adjustment of status denials

that are based upon nondiscretionary eligibility issues even when the individual is

not in removal proceedings.8 Lee v. USCIS, 592 F.3d 612, 619-20 (4th Cir.

8 Where an individual is in removal proceedings and able to renew the adjustment

application before the immigration judge, INA §242(a)(5) would limit judicial review to

a petition for review in the court of appeals following a BIA appeal.

9

2010). Two other courts of appeals have held to the contrary, however, finding

that – although the Real ID Act extended the limits on discretionary review to

district courts – it did not extend the scope of such limitations where the

individual was not in removal proceedings. Mamigonian, 710 F.3d at 945; Pinho

v. Gonzales, 432 F.3d 193, 204 (3d Cir. 2005) (“Determination of eligibility for

adjustment – unlike the granting of adjustment itself – is a purely legal question

and does not implicate agency discretion”).9

o §242(a)(2)(B)(ii) limits review over any other action or decision (other

than asylum), “the authority for which is specified under this title to be in the

discretion” of DHS. As with subsection (i), the Real ID Act extended this

provision to non-removal actions in district court. However, over the years,

courts have identified important limits on its applicability. First, in Kucana v.

Holder, 558 U.S. 233 (2010), the Supreme Court made clear that subsection (ii)

limits judicial review only when the statute grants discretionary authority to DHS,

not when such discretion is granted solely by regulation.

Additionally, a number of courts have held that the grant of discretion to DHS

must be clear in the statute; thus, because the INA does not grant DHS discretion

to deny an I-130 visa petition, these courts concluded that §242(a)(2)(B)(ii) does

not bar review of such denials. See, e.g., Ginters v. Frazier, 614 F.3d 822 (8th

Cir. 2010); Ruiz v. Mukasey, 552 F.3d 269 (2d Cir. 2009); Ayanbadejo v. DHS,

517 F.3d 273 (5th Cir. 2008). Similarly, the Eleventh Circuit found that a district

court retained review under §242(a)(2)(B)(ii) over statutory eligibility issues

related to Temporary Protected Status (TPS) even though the ultimate grant of

TPS was in the unreviewable discretion of DHS. Mejia Rodriguez v. DHS, 562 F.

3d 1137 (11th Cir. 2009).

No review of agency action committed to agency discretion by law

5 USC §701(a)(2) states that agency action is reviewable under the APA except “where it

is committed to agency discretion by law.” The government takes an expansive view of

what constitutes agency action committed to agency discretion by law, and will move to

dismiss a case on this basis. Fortunately, courts have taken a more limited view. The

Supreme Court has set forth several important guiding principles.

First, the Court has held that the APA embodies “a basic presumption of judicial review.”

Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967). “[O]nly upon a showing of

‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict

access to judicial review.” Id. at 141.

9 For more on the INA bar to review of discretionary decisions, see the LAC’s

Practice Advisory “Federal Court Jurisdiction Over Discretionary Decisions After Real

ID: Mandamus, Other Affirmative Suits and Petitions for Review” (April 5, 2006),

http://www.legalactioncenter.org/sites/default/files/realid_update_040506.pdf.

10

Under §701(a)(2) of the APA, this presumption of judicial review over agency action can

be overcome where such action is committed to agency discretion by law. However, the

Supreme Court has held that such circumstances are “rare,” and only occur “where the

relevant statute ‘is drawn so that a court would have no meaningful standard against

which to judge the agency’s exercise of discretion.’” Lincoln v. Vigil, 508 U.S. 182, 190-

91 (1993) (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). In such rare

circumstances, the courts may find that there is no law for the court to apply to judge the

agency’s exercise of discretion. Furthermore, in these cases, the court will find that the

grant of discretion to the agency is unfettered and not subject to review under the APA.

Therefore, the first step in any analysis under §701(a)(2) is to look at the statute to see if

it sets forth a standard against which to measure the agency action. For example, in

Spencer Enterprises, Inc. v. U.S.A., 345 F.3d 683, 688 (9th Cir. 2003), the court

determined that the statute setting forth eligibility requirements for employment based

investor visas provided a standard to measure USCIS’s decision of whether to approve a

preference petition for such a visa. As such, the court found that there was law to apply

and that there could be judicial review under the APA.

Similarly, the court in Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir. 2005), found that

under the APA, the court could review the denial of an adjustment of status application

by USCIS where the denial was based on a statutory eligibility issue. The court found

that the statute set forth standards for eligibility under which the court could review the

agency action. It distinguished such statutory eligibility issues from denials of

adjustment applications in the exercise of discretion. See also Shah v. Chertoff, No.

3:05-CV-1608-BH (K) ECF, 2006 U.S. Dist. LEXIS 73754, *28 (N.D. Tex. 2006)

(finding that the issue subject to APA review was the question of eligibility for an

extension of L-1A visa – for which there were statutory guidelines to apply – and not the

discretionary denial of such an extension).

In contrast, courts have found that agency action is wholly committed to agency

discretion in limited circumstances where neither the statute nor the regulations provide

any guidelines for the exercise of discretion. For example, courts have held that the

BIA’s refusal to reopen a case sua sponte is unreviewable on this basis. See, e.g., Ochoa

v. Holder, 604 F.3d 546, 549 (8th Cir. 2010); Mejia-Hernandez v. Holder, 633 F.3d 818,

823 (9th Cir. 2011); but see Chehazeh v. A.G. of the United States, 666 F.3d 118 (3d Cir.

2012) (upholding district court review over BIA sua sponte reopening of a final removal

decision).10

Similarly, the Fifth Circuit held that, under prior law, the APA did not apply to review of

a grant of prehearing voluntary departure because there were no guidelines for the

exercise of this discretionary authority set forth in the law. Perales v. Casillas, 903 F.2d

1043, 1050 (5th Cir. 1990). A number of courts also have held that the APA does not

apply to the discretionary waiver of a foreign residency requirement under INA §212(e)

10

While these and several cases cited below are removal cases, and thus were not

brought under the APA, the same reasoning would apply in an APA case.

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for the same reason. See, e.g., Singh v. Moyer, 887 F.2d 1035, 1039 (7th Cir. 1989);

Abdelhamid v. Ilchert, 774 F.2d 1447, 1450 (9th Cir. 1985); Dina v. Attorney General,

793 F.2d 473, 476-77 (2d Cir. 1986) (per curiam).

However, even where a statute provides unfettered discretion to an agency, if the agency

adopts regulations or practices to guide its exercise of discretion, these can provide the

necessary standard for judicial review of the agency action under the APA. Thus, it is

also important to look at regulations and agency guidelines to see if they contain factors

that an agency must consider in reaching its decision. If so, judicial review arguably can

be exercised under the APA

For example, in M.B. v. Quarantillo, 301 F.3d 109, 113 (3d Cir. 2002), the court found

that the regulations that governed special immigrant juvenile visa petitions set forth “the

material matters to be included in a petition.” The court found that these regulations,

coupled with agency field guidance, provided sufficient standards by which to review the

agency action. As such, judicial review could be exercised under the APA. Similarly, a

number of courts have found that the regulations limit when the BIA can affirm the

decision of an IJ without issuing an opinion, and that these regulations therefore supply

the “law to apply” for judicial review. See, e.g., Haoud v. Ashcroft, 350 F.3d 201, 206

(1st Cir. 2003); Smirko v. Ashcroft, 387 F.3d 279, 291-292 (3d Cir. 2004); but see Ngure

v. Ashcroft, 367 F.3d 975, 987 (8th Cir. 2004) (finding no review because decision

committed to agency discretion by law).

Exhaustion of administrative remedies

Generally, before seeking federal court review of a decision of an administrative agency,

an individual must exhaust all administrative remedies. If the individual fails to do this,

the court may refuse to review the case. The Supreme Court has held, however, that

there are limits on when exhaustion of administrative remedies can be required in a suit

under the APA. Darby v. Cisneros, 509 U.S. 137 (1993). Specifically, Darby held that

in federal court cases brought under the APA, a plaintiff can only be required to exhaust

administrative remedies that are mandated by either a statute or regulation.

For a case to be exempt from the exhaustion requirement under Darby, the following

criteria must be met:

the federal suit is brought pursuant to the APA;

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 administrative decision pending the administrative appeal; and

The adverse agency decision being challenged is final for purposes of the APA.

For additional discussion of each of these requirements, see the LAC’s Practice Advisory

“Failure to Appeal to the AAO: Does it Bar All Federal Court Review of the Case?” (July

22, 2004), http://www.legalactioncenter.org/sites/default/files/lac_pa_072704.pdf.

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The Darby rule has been applied in immigration cases brought under the APA, with the

courts concluding that no exhaustion of administrative remedies was required. See, e.g.,

Bangura v. Hansen, 434 F.3d 487, 498 (6th Cir. 2006) (APA challenge to denial of a

spousal immigration petition); Pinho v. Gonzales, 432 F.3d 193, 202 (3d Cir. 2005)

(applying Darby and finding that possibility that removal proceedings could be instituted

in future in which adjustment application could be renewed did not establish a mandatory

exhaustion requirement); Hillcrest Baptist Church v. USA, No. C06-1042Z, 2007 U.S.

Dist. LEXIS 12782, *6 (W.D. WA. Feb. 23, 2007) (adjustment of status in a religious

worker case).

Final agency action

Section 704 of the APA states that “final agency action” for which there is no other

adequate remedy in a court is subject to review under the APA. This “finality”

requirement is somewhat intertwined with exhaustion; where there are administrative

remedies that must be exhausted in accord with Darby v. Cisneros, 509 U.S. 137 (1993),

an agency action generally will not be “final” until such exhaustion has taken place. See

Pinho v. Gonzales, 432 F.3d 193, 200 (3d Cir. 2005) (“Finality requires exhaustion of

administrative remedies”); see also Air Espana v. Brien, 165 F.3d 148 (2d Cir. 1999)

(INS fine against airline carriers was not final where airlines’ voluntary appeal to the BIA

was still pending); Beverly Enterprise, Inc. v. Herman, 50 F. Supp. 2d 7, 12 (D. D.C.

1999) (DOL determination that plaintiff employer violated the Immigration Nursing

Relief Act not final where plaintiff’s administrative appeal was still pending).

The “finality” requirement is also distinct from the exhaustion requirement, however.

Even where exhaustion of administrative remedies is not required under the Darby

analysis, the APA still requires that the agency decision be “final” in order for it to be

challenged in federal district court. The Supreme Court indicated that generally two

conditions must be satisfied for agency action to be “final”: 1) the action must mark the

“‘consummation’ of the agency’s decision-making process” and cannot be “of a mere

tentative or interlocutory nature;” and 2) the action must be one by which “rights or

obligations have been determined,” or from which “legal consequences will flow.”

Bennett v. Spear, 520 U.S. 154, 177-78 (1997).

Under this standard, USCIS’s denial of “specific consent” for a state court dependency

hearing for a special immigrant juvenile visa was held to be final agency action. Zheng v.

Pogash, 416 F. Supp. 2d 550, 556 n.9 (S.D. Tex. 2006). Similarly, an AAO denial of an

adjustment application has been found to be a final agency decision when there are no

removal proceedings pending in which the issue could be raised. Pinho v. Gonzales, 432

F.3d 193, 202 (3d Cir. 2005); but see Barut v. USCIS, No. 06-3246-CV-S-RED, 2006

U.S. Dist. LEXIS 61424 (W.D. Mo. 2006) (adjustment denial is not a final agency action

because application can be renewed in removal proceedings).

Other immigration agency actions, however, are not final under the APA. For example,

USCIS’s finding of marriage fraud was not final agency action; rather, it would only

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become final action when the visa petition was denied. Bangura v. Hansen, 434 F.3d

487, 501 (6th Cir. 2006); see also Hernandez v. DHS, No. 06-CV-12457-DT, 2006 U.S.

Dist. LEXIS 71786 (E.D. Mich. 2006) (USCIS denial of TPS not final agency action

where plaintiff placed in removal proceedings and can renew the TPS claim in these

proceedings); E.J.’s Luncheonette v. De Haan, 01 CIV 5603 (LMM), 2002 U.S. Dist.

LEXIS 105 (S.D. NY 2002) (denial of a request for Reduction in Recruitment as part of a

labor certification was not final agency action; instead, only a Notice of Findings which

denied the labor certification would be final action); Transport Robert Ltee v. U.S. INS,

940 F. Supp. 338 (D. D.C. 1996) (letter from INS Associate Commissioner refusing to

certify truck drivers as B-1 business visitors was not final agency action).

7. Parties to an APA suit

Who has standing to bring an APA suit?

In all federal litigation, Article III of the Constitution imposes a requirement that a

plaintiff have “standing” to sue, which generally requires that the plaintiff have suffered a

sufficient injury-in-fact. See, e.g., Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). However, the APA

imposes an additional standing requirement. The APA states that:

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 USC §702. The Supreme Court has interpreted this provision as requiring that a

plaintiff not only have an injury but also demonstrate standing under the APA by

showing that “the interests sought to be protected by the [plaintiff are] arguably within

the 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, 153

(1970).

The “zone of interest” test does not require a plaintiff to establish that Congress

specifically intended to benefit the plaintiff. Rather, there is a two-step inquiry. “First,

the court must determine what interests the statute arguably was intended to protect, and

second, the court must determine whether the ‘plaintiff’s interests affected by the agency

action in question are among them.’” Bangura v. Hansen, 434 F.3d 487, 499 (6th Cir.

2006) (quoting NCUA v. First National Bank & Trust Co., 522 U.S. 479, 492 (1998)).

One court has described this test as “a fairly weak prudential restraint, requiring some

non-trivial relation between the interests protected by the statute and the interest the

plaintiff seeks to vindicate.” Hernandez-Avalos v. INS, 50 F.3d 842, 846 (10th Cir.

1995). Even so, the “zone of interest” test “denies a right of review if the plaintiff’s

interests are … marginally related or inconsistent with the purposes implicit in the

statute.” NCUA, 522 U.S. at 491 (quotations omitted).

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Applying this test in the immigration context, numerous courts have held that a non-

citizen beneficiary of a family or employment-based visa petition is within the “zone of

interest” of the statute and thus has standing to sue over the denial or revocation of a visa

petition. See, e.g., Bangura, 434 F.3d at 499-500; Abboud v. INS, 140 F.3d 843, 847 (9th

Cir. 1998); Ghaley v. INS, 48 F.3d 1426, 1434 n.6 (7th Cir. 1995); Taneja v. Smith, 795

F.2d 355, 358 n.7 (4th Cir. 1986). An applicant for a special immigrant juvenile visa also

has been found to fall within the zone of interest of that provision of the INA. Yu v.

Brown, 36 F.Supp. 2d 922 (D. N.M. 1999).

In contrast, several courts held that noncitizens who were serving criminal sentences for

deportable offenses were not within the “zone of interest” of former INA § 242(i) and

thus had no standing to challenge the immigration service’s failure to initiate deportation

proceedings prior to completion of their criminal sentences. See Campos v. INS, 62 F.3d

311, 314 (9th Cir. 1995); Hernandez-Avalos v. INS, 50 F.3d 842, 847-48 (10th Cir.

1995); Giddings v. Chandler, 979 F.2d 1104, 1109-10 (5th Cir. 1992).

Who can be named as a defendant?

The APA provides that the United States can be named as a defendant in an APA action.

5 USC §702. It also specifies, however, 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.” Id. In light of this, it is best

to name as defendants the specific individual within the agency who can carry out any

injunction or other mandatory order of the court. Note, however, that this does not mean

this individual is being sued in his or her individual capacity. Instead, the individual is

named as a defendant in his or her official capacity within the agency. For more on this

topic, see the LAC’s practice advisory “Whom To Sue And Whom To Serve In

Immigration-Related District Court Litigation” (Updated May 13, 2010),

http://www.legalactioncenter.org/sites/default/files/lac_pa_040706.pdf.

8. Standard of Review

What is the scope and standard of review in an APA suit?

5 USC §706 provides for two general types of relief and generally sets forth the scope of

review for each. First, the court can “compel agency action unlawfully withheld or

unreasonably delayed.” 5 USC §706(1). This provision is similar to a mandamus action

to compel delayed agency decision-making or action. A "central point" is that the "only

agency action that can be compelled under the APA is action legally required." Norton v.

S. Utah Wilderness Alliance, 542 U.S. 55, 63, 124 S. Ct. 2373, 159 L. Ed. 2d 137 (2004).

Moreover, a court may only compel an agency "to take action upon a matter, without

directing how it shall act." Id. Congress need not have set a definitive deadline for an

agency to act, however, in order for a court to find a delay unreasonable; §706(1)

mandates that all action be done within a reasonable amount of time. Kaplan v. Chertoff,

No. 06-5304, 2007 U.S. Dist. LEXIS 22935, *71-72 (E.D. Pa. Mar. 29, 2007) (finding

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that an APA claim was adequately stated against both USCIS and the FBI with respect to

delays in adjustment of status and naturalization applications).

Second, the APA states that a court can “hold unlawful and set aside agency actions,

findings and conclusions” that meet one or more of six standards. 5 USC §706(2). Four

of these standards apply to all cases without limitation, and thus most often would apply

to the type of suit discussed in this practice advisory. These four standards are:

Arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with the law;

Contrary to constitutional right, power, privilege or immunity;

In excess of statutory jurisdiction, authority, or limitations, or short

of statutory right; or

Without observance of procedures required by law.

5 USC §§706(2)(A)-(D); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 414 (1971) (“In all cases agency action must be set aside if the action was

‘arbitrary, capricious, an abuse of discretion or otherwise no in accordance with law’ or if

the action failed to meet statutory, procedural, or constitutional requirements.”).

9. Discovery

Can discovery be carried out against the government agency in an APA suit?

Yes, in certain cases. The general rule in an APA action is that judicial review is limited

to the administrative record and thus no discovery is allowed. There are exceptions to

this rule. Moreover, in any case in which there are additional claims besides the APA

claim, the court may permit discovery outside of the administrative record with respect to

the non-APA claims.

As a general rule, judicial review under the APA is limited to the administrative record

that was before the agency when it made its decision. Overton Park, 401 U.S. at 420; 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”). Based upon this general rule, the

government will frequently oppose discovery in an APA action.

There are exceptions to the general rule. The primary exception applies when there is no

administrative record for the court to review, or the record may be insufficient with

respect to the claims in the suit. Such an incomplete record “may frustrate judicial

review,” Voyageurs National Park Assoc. v. Norton, 381 F.3d 759, 766 (8th Cir. 2004),

and discovery may be necessary to supplement the agency record. See also Animal

Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988) (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).

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This often will be the case where the suit challenges a pattern or practice of agency

decisions or action, rather than the decision in one individual case. In such pattern and

practice cases, there may not be a single agency record to be reviewed and the court may

permit discovery.

Even in individual cases, however, discovery may be necessary to supplement the agency

record. To remedy an incomplete or inadequate record, the district court may allow

discovery, although the court may narrowly tailor the scope of discovery to respond to

whatever is missing in the agency record. Voyageurs National Park Assoc., 381 F.3d at

766. In particular, the Supreme Court has said that inquiry into the mental processes of

the agency decision-maker is to be avoided unless it is “the only way there can be

effective judicial review.” Overton Park, 401 U.S. at 420.

For example, in an APA challenge to the denial of a marriage-based visa petition for

alleged fraud, the plaintiffs sought to depose two agency employees engaged in the

investigation of the visa petition. Sabhari v. Cangemi, No. 04-1104 ADM/JSM, 2005

U.S. Dist. LEXIS 3550 (D. Minn. 2005). The plaintiffs argued that these depositions

were necessary because the record was incomplete in that there was no contemporaneous

administrative record to explain why USCIS deviated from its normal practices and

procedures when investigating the marriage petition. Id., 2005 U.S. Dist. LEXIS 3550,

*6. The district court agreed with this, but more narrowly tailored the discovery,

ordering that the defendant USCIS was to submit the information that plaintiffs sought in

affidavits rather than by deposition. Id.

10. Attorney’s Fees

Is it possible to get attorney’s fees in these cases?

Yes. The Equal Access to Justice Act (EAJA), 28 USC § 2412(d) & 5 USC § 504 et seq.,

authorizes payment of attorney’s fees and costs for successful litigation against the

government in the federal courts. Thus, it is always a good idea to request attorney’s fees

as part of the relief sought in an APA case. For more on EAJA fees, see the LAC’s

practice advisory, “Requsting Attorney’s Fees Under the Equal Access to Justice Act”

(Updated Dec. 15, 2008),

http://www.legalactioncenter.org/sites/default/files/EAJA_Fees_04_07_06.pdf.

PRACTICE ADVISORY1

March 2017

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 clearinghouse@immcouncil.org. 2 The American Immigration Council thanks Theresa A. Queen and Sarah Mathews of Greenberg Traurig, LLP for their assistance in updating this practice advisory.

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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

(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.

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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).

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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).

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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).

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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.

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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

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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.

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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).

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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”

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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).

PRACTICE ADVISORY1 Updated November 6, 2015

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.

2

What is a mandamus action?

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

3

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 plc.atlanta@dol.gov. 16 The current email address is flc.pwd@dol.gov. 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.

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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).

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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).

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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.).

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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).

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• U.S. Attorney General.

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).

PRACTICE ADVISORY1

June 17, 2014

REQUESTING ATTORNEYS’ FEES UNDER THE

EQUAL ACCESS TO JUSTICE ACT

By Trina Realmuto and Stacy Tolchin2

I. INTRODUCTION

The Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) & 5 U.S.C. § 504 et seq.,

authorizes payment by the government of attorneys’ fees and costs for successful litigation

against the government in the federal courts. A successful litigant who establishes eligibility

under EAJA is entitled to a fee award for both litigating the case and litigating the fee request.

Fees and costs under EAJA can be awarded without regard to whether or how much the client

paid. As such, attorneys who take cases on a pro bono or “low bono” basis may seek

reimbursement of fees and costs under EAJA.

1 Copyright (c) 2014, American Immigration Council and National Immigration Project of

the National Lawyers Guild. Click here for information on reprinting this practice advisory.

This advisory was originally issued on December 8, 2008. It is intended for lawyers and is not a

substitute for independent legal advice provided by a lawyer familiar with a client’s case.

Counsel should independently confirm whether the law in their circuit has changed since the date

of this advisory. 2 Trina Realmuto is a former consultant to the American Immigration Counsel and

currently a Staff Attorney with the National Immigration Project of the National Lawyers Guild.

Stacy Tolchin is the founder of The Law Offices of Stacy Tolchin in Los Angeles, California and

specializes in complex immigration law, including litigation under the Equal Access to Justice

Act. Questions about this advisory can be directed to Trina at trina@nipnlg.org and Stacy at

stacy@tolchinimmigration.com.

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”).

5

include a tally of the total number of hours expended on the litigation by each timekeeper, the

total amount of costs, and the total amount of combined fees and costs requested.

3. Defending Against Allegations of Improper Time Records

Once an EAJA fee application is filed, the government’s response often raises objections to

billing entries that it deems to be vague, imprecise or duplicative. The government will usually

request that the court remedy the alleged impropriety by reducing any fee award in the exercise

of discretion.

Case law addresses the degree of specificity required for billing records and whether the records,

taken in context, are sufficient to identify the substance of the work done.7 In addition,

presenting documentary or testimonial evidence from qualified attorneys who have reviewed the

billing records and can attest that the records comport with general standards of timekeeping may

rebut the government’s allegations of vague or non-descriptive billing records.

The government also may contest a claimed EAJA fee based on duplication and similarly may

request that the court reduce the award in the exercise of discretion. At least one circuit court

has held that reductions for alleged duplication, however, are appropriate “only if the attorneys

are unreasonably doing the same work.”8

The burden is on the government to show specific

instances of unreasonable duplication.9

The need for multiple attorneys to prepare briefs to ensure timely filing, share information,

assign responsibilities, and plan strategy is well recognized.10

III. FILING DEADLINE

The EAJA statute requires that the successful litigant file the fee application within 30 days of

“final judgment” in the action. 28 U.S.C. § 2412(d)(1)(B). If a local rule provides for a different

fee application deadline, the statutory deadline controls. See Al-Harbi v. I.N.S., 284 F.3d 1080,

1082 (9th Cir. 2002) (“Thus, to the extent that Ninth Circuit Rule 39-1.6 is inconsistent with the

EAJA, the Circuit Rule is inapplicable, and the EAJA controls.”).

A “final judgment” means a judgment that is final and not appealable and that it includes an

order of settlement. 28 U.S.C. § 2412(d)(2)(G). Thus, a motion for fees must be filed within 30

days after the expiration of time for filing an appeal petition for certiorari. In immigration cases

(where longer appeal deadlines apply because the government is always a party), the time for

filing an appeal or petition for certiorari varies depending on whether the case was litigated in

district or circuit court.

7 See, e.g., Castaneda-Castillo v. Holder, 723 F.3d 48, 79 (1st Cir. 2013).

8 Johnson v. University College, 706 F.2d 1205, 1208 (11th Cir. 1983) (emphasis in

original). 9 McGrath v. County of Nevada, 67 F.3d 248, 255-256 (9th Cir. 1995).

10 See, e.g., Berberena v. Coler, 753 F.2d 629, 633-634 (7th Cir. 1985); McKenzie v.

Kennickell, 645 F. Supp. 437, 450 (D.D.C. 1986); Tchemkou v. Mukasey, 517 F.3d 506, 511-12

(7th Cir. 2008).

6

In district court cases, a party has 60 days after the judgment or order is entered by the district

court to file an appeal. Fed. R. App. P. 4(a)(1)(B). Thus, an EAJA fee application must be filed

within 30 days after the expiration of the 60-day time period for filing an appeal. If an appeal is

taken, the district court’s judgment is not final and therefore the 30-day period for filing an

EAJA fee application does not begin to run until all the appellate proceedings are concluded. Al-

Harbi v. INS, 284 F.3d 1080, 1084 (9th Cir. 2002) (“final judgment” is “the date on which a

party’s case has met its final demise, such that there is no longer any possibility that the district

court’s judgment is open to attack”).

If the circuit court remands the case, a motion for fees must be filed within 30 days after the

expiration of time for filing an appeal following the district court’s entry of judgment on remand.

In circuit court cases, a party has 90 days after the judgment or order is entered by the circuit

court to file a petition for certiorari to the Supreme Court. Sup. Ct. R. 13(1). Thus, an EAJA fee

application must be filed within 30 days after the expiration of the 90-day time period for filing a

petition for certiorari. See Al-Harbi v. INS, 284 F.3d 1080, 1083 (9th Cir. 2002) (collecting cases

from other circuits). This post-judgment appeal period applies even if the court entered the

judgment pursuant to the government’s request. Li v. Keisler, 505 F.3d 913, 917 (9th Cir. 2007)

(citing Hoa Hong Van v. Barnhart, 483 F.3d 600, 612 (9th Cir. 2007)). In Li, the Ninth Circuit

expressly held “that the thirty-day EAJA fee application period does not begin to run until ninety

days after an order remanding an immigration matter to the BIA, even if such an order is at the

request of the government.” Li, 505 F.3d at 917. In that case, the Court held that a circuit

mediator’s remand order constituted the final judgment for purposes of calculating the EAJA filing

deadline. Id. at 917-918. The date the mandate is issued is not relevant to calculation of the

filing deadline. Zheng v. Ashcroft, 383 F.3d 919, 921-22 (9th Cir. 2004).

If a petition for rehearing is filed in the court of appeals, the 90-day period to file a petition for

certiorari runs from the date of the denial of the petition for rehearing or, if the petition for

rehearing is granted, the subsequent entry of judgment. Sup. Ct. R. 13(3). Moreover, if the

losing party files a petition for certiorari, the circuit court’s judgment is not final and therefore

the 30-day period for filing an EAJA fee application would not begin to run until the Supreme

Court denies the petition for certiorari. In the event that the Supreme Court grants the petition

for certiorari, the 30-day period would not begin to run until the Supreme Court enters judgment

or, if the case is remanded, until the circuit (or possibly the district court if the circuit court

orders remand) enters judgment.

In general, the government responds to EAJA fee applications by filing an opposition within the

time prescribed by Federal Rule of Appellate Procedure 27(a)(3) or by requesting additional time

to file a response. However, if the government fails to file a timely opposition, the court may

find that the government’s silence is a concession that fees are appropriate. In Gwaduri v. INS,

362 F.3d 1144 (9th Cir. 2004), the government filed an opposition along with a motion to accept

the untimely opposition nearly six weeks after the due date. The court denied the motion to

accept the untimely opposition and granted fees, stating “[t]here is simply nothing in the

significantly delinquent motion for filing out of time that justifies the government’s lengthy

silence in this matter.” 362 F.3d at 1146. The court reasoned that it was “well-within [its]

7

discretion” to determine that the government’s lack of a timely opposition amounted to a

concession that its litigation position was not substantially justified or, alternatively, a failure to

offer a basis for a finding of substantial justification. Id.

IV. WHERE TO FILE

The EAJA statute does not specify where to file an EAJA fee request. However, logic and

common practice dictate that where only one court has considered the merits of the case, that

same court should consider the merits of the EAJA fee request. In a petition for review, an

EAJA fee application is properly filed in the court of appeals that adjudicated the petition. In

district court actions where neither side appealed to the court of appeals, the application is

properly filed in the district court where the action was adjudicated.

In district court actions where one side appeals on the merits, the issue of where to file is more

complicates as the appellate court may issue the final judgment in the case when adjudicating the

appeal or may remand the case for further proceedings. When an EAJA fee request includes fees

for appellate work, it is advisable to review the appropriate circuit court case law and consult the

court’s local rules.

Some courts have indicated a preference for district courts to adjudicate fee requests that include

appellate fees.11

Other courts have awarded fees for appellate work without remanding for the

district court to award fees in the first instance.12

Still other courts have suggested that either the

district court or the court of appeals may adjudicate fee requests that include fees for work on

11

See, e.g., Foster v. Mydas Assocs., Inc., 943 F.2d 139, 144-45 (1st Cir. 1991) (noting that

determination of fee award by appellate court in first instance would usurp trial court function);

McDonald v. Secretary of Health and Human Services, 884 F.2d 1468, 1481 (1st Cir. 1989)

(“Plaintiffs may also apply to the district court for attorneys’ fees reasonably incurred in

connection with the present appeal.”) (footnote omitted); Garcia v. Schweiker, 829 F.2d 396, 398

(3d Cir. 1987) (reiterating the district court should set the fees for work in both courts when

representation in each was required) (citation omitted); Smith v. Detroit Bd. of Educ., 728 F.2d

359, 360 (6th Cir. 1984) (per curiam) (district court more appropriate forum to award fees

incurred in appeal); Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 588-91 (9th Cir. 1984)

(remanding to district court to reconsider award of attorney fees for appellate work); Aspen

Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1527 (10th Cir. 1984) (antitrust

action remanded to district court to award appropriate attorney fees for appellate work), aff'd,

472 U.S. 585 (1985). See also Spell v. McDaniel, 852 F.2d 762, 766 (4th Cir. 1988) (reviewing

district court award of fees for appellate work under § 1988); Perkins v. Standard Oil Co., 399

U.S. 222 (1970) (stating that the amount of attorneys’ fee award for appellate services under § 4

of the Clayton Act “should, as a general rule, be fixed in the first instance by the District Court,

after hearing evidence as to the extent and nature of the services rendered”). 12

See, e.g., Jenkins by Jenkins v. Missouri, 127 F.3d 709, 719 (8th Cir. 1997) and cases

cited therein.

8

appeal.13

In the Second Circuit, applications for appellate fees are filed directly with the court of

appeals and a separate fee motion is required for work before the district court.14

Some courts have separate local rules for attorneys’ fees requests in general and local rules for

fee requests under EAJA. Many local rules expressly provide that the court of appeals may

remand fee requests filed in the courts of appeals to the district court for adjudication upon a

motion or in the exercise of the court’s discretion.15

For a discussion regarding where to file an EAJA fee application for work done before the

Supreme Court, see Dague v. Burlington, 976 F.2d 801, 803-805 (2d Cir. 1991).

V. STATUTORY REQUIREMENTS

The EAJA statute, 28 U.S.C. §§ 2412(d)(1)(A)&(B), directs that a fee application must include:

A showing that the petitioning party is a prevailing party. 8 U.S.C. § 2412(d)(1)(A).

An allegation that the pre-litigation and litigation position of the government was not

substantially justified. 28 U.S.C. §§ 2412(d)(1)(A)&(2)(D).

An allegation that there are no special circumstances that would make an award unjust.

28 U.S.C. § 2412(d)(3).

A showing that the petitioning party has met the appropriate “net worth” requirements.

28 U.S.C. § 2412(d)(2)(B).

13

Martin v. Heckler, 754 F.2d 1262, 1265 n.6 (5th Cir. 1985) (“In some cases, applications

for fees and expenses should be considered in the district court in the first instance. In others, we

may consider them first.”) (citations omitted); Ekanem v. Health & Hosp. Corp., 778 F.2d 1254,

1257 (7th Cir. 1985) (“our research reveals that a petition on entitlement to appellate attorneys

fees may be filed in either the district court or the court of appeals”). Accord 11th Circuit R. 39-

2 (e) (permitting attorneys fees request to be filed in district court in lieu of court of appeals

where appeal resulted in remand for further proceedings). 14

Smith v. Bowen, 867 F.2d 731, 736 (2d Cir. 1989) (“applications [under the EAJA] for

appellate fees in this Circuit should be filed directly with the Court of Appeals”); McCarthy v.

Bowen, 824 F.2d 182, 183 (2d Cir. 1987) (per curiam) (directing the filing of EAJA appellate fee

applications in court of appeals so that it may determine whether to enlist the aid of the district

court in resolving disputed issues). 15

See, e.g., 1st Circuit R. 39.1(a)(2)(D) (“The court in its discretion may remit any such

[EAJA fee] application to the district court for a determination.”); 8th Circuit R. 47C (“On the

Court’s own motion or at the request of the prevailing party, a motion for attorneys fees may be

remanded to the district court or administrative agency for appropriate hearing and

determination.”); 9th Circuit R. 39-1.8 (“Any party who is or may be eligible for attorneys fees

on appeal to this Court may, . . ., file a motion to transfer consideration of attorneys fees on

appeal to the district court . . from which the appeal was taken.”); 11th Circuit R. 39-2 (d)

(permitting motion to transfer fee application to district court from which the appeal was taken).

9

A statement of the total amount of fees and costs sought along with an itemized account

of time expended and rates charged. 28 U.S.C. § 2412(d)(1)(B).

Each of these statutory requirements is discussed in detail below.

There is one additional threshold issue that litigants should consider. The EAJA statute applies

to “any civil action (other than cases sounding in tort), including proceedings for judicial review

of agency action, brought by or against the United States in any court having jurisdiction of that

action.” 28 U.S.C. § 2412(d)(1)(A). Thus, in the immigration context, EAJA fees generally are

available in petitions for review, mandamus actions, Administrative Procedure Act suits, and

habeas corpus actions.16

EAJA fees generally are not recoverable in actions under the Federal Tort Claims Act, though

some courts have allowed recovery where the government acted in “bad faith.” Rodriguez v.

United States, 542 F.3d 704 (9th Cir. 2008); Campbell v. U.S., 835 F.2d 193 (9th Cir. 1987);

Sanchez v. Rowe, 870 F.2d 291 (5th Cir. 1989). Moreover, EAJA fees are not recoverable

against the government in successful damages actions under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Kreines v. U.S., 33 F.3d 1105 (9th

Cir. 1994); Saxner v. Benson, 727 F.2d 669, 673 (7th Cir. 1984).17

EAJA does not govern the

availability of fees and costs incurred in civil rights actions filed against state or local entities

under 42 U.S.C. § 1983 or actions under the Freedom of Information Act, 5 U.S.C. § 552. Those

statutes each have separate provisions governing fee recovery.18

A. Prevailing Party Status

To qualify for an EAJA award, the petitioning party has the burden of proving that he is a

prevailing party. A “prevailing party” is one who “has been awarded some relief by a court.”

16

See, e.g., Gomez-Beleno v. Holder, 644 F.3d 139, 144-45 (2d Cir. 2011) (petition for

review); Aboushaban v. Mueller, 475 F. Supp. 2d 943, 946 (N.D. Cal. 2007) (mandamus);

Sotelo-Aquije v. Slattery, 62 F.3d 54, 58-59 (2d Cir. 1995) (habeas action). 17

The government previously has argued that the term “civil action” does not

unambiguously encompass habeas corpus actions under 28 U.S.C. § 2241 and, thus, EAJA fees

are not available in habeas cases. While some courts have accepted this argument for prisoners

in criminal custody, importantly, no court has accepted it for noncitizens in immigration custody.

Vacchio v. Gonzales, 404 F.3d 663, 668-72 (2d Cir. 2005) (rejecting government’s argument that

habeas petition challenging an immigration detention does not qualify as a “civil action”);

Kholyavskiy v. Schlecht, 479 F. Supp. 2d 897, 901 (E.D. Wis. 2007) (same); O’Brien v. Moore,

395 F.3d 499, 507-08 (4th Cir. 2005) (accepting government’s “civil action” argument but

expressly distinguishing habeas petitions challenging immigration detentions from habeas

petitions in the criminal context); In re Petition of Hill, 775 F.2d 1037, 1040-41 (9th Cir. 1985)

(rejecting government’s “civil action” argument in habeas case challenging petitioner’s

exclusion). 18

See 42 U.S.C. § 1998 and 5 U.S.C. § 552(a)(4)(E)(i) (2006), amended by OPEN

Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524 (Dec. 31, 2007).

10

Buckhannon Board of Care & Home Inc. v. West Virginia Department of Health and Human

Resources, 532 U.S. 598, 603 (2001).

1. Prevailing Party Status Cannot Be Based On the “Catalyst Theory”

Under the so-called “catalyst theory,” a litigant is entitled to prevailing party status if the lawsuit

was a catalyst that prompted the government to voluntarily alter its conduct. For example, a

party could be considered a “prevailing party” under the catalyst theory if the lawsuit prompted

the government to voluntarily grant the requested relief or pass legislation that mooted the

federal case.

In Buckhannon, the Supreme Court held that the “catalyst theory” is no longer a permissible

basis for an attorneys’ fees award under the fee-shifting statutes at issue in that case. The

“catalyst theory,” the Court reasoned, “allows an award where there is no judicially sanctioned

change in the legal relationship of the parties.” 532 U.S. at 605. The Court held that a party can

only be deemed a prevailing party, for purposes of fee-shifting statutes such as EAJA, if there

has been an enforceable “alteration of the legal relationship of the parties.” Id. at 621. Thus,

under Buckhannon, a party whose suit prompts the precise relief sought may be a prevailing

party only if there is a judicially enforceable court entry memorializing the victory.

2. Types of Court Entries That May Prove Prevailing Party Status

Examples of court entries that may serve as the basis for an award of EAJA fees include

enforceable judgments on the merits and settlement agreements that are favorable to one-side

and enforceable through a consent decree. Buckhannon, 532 U.S. at 604-06. A consent decree is

technically a judgment entered by consent of the parties whereby the government agrees to stop

the alleged illegal activity without necessarily admitting guilt or wrongdoing. The three required

characteristics of a cognizable consent decree under Buckhannon are that it is (1) “court-

ordered,” (2) judicially approved, and (3) provides for judicial oversight to enforce the parties’

obligations. Aronov v. Chertoff, 562 F.3d 84, 90-91 (1st Cir. 2009) (en banc) (discussing

Buckhannon’s consent decree requirements).

Post-Buckhannon case law has created additional examples of judicially enforceable court entries

specific to immigration cases. In Vacchio v. Gonzales, 404 F.3d 663, 673-74 (2d Cir. 2005), the

court held that an interim order directing release pending adjudication of petitioner’s habeas

corpus appeal was sufficient to confer prevailing party status. In Carbonell v. INS, 429 F.3d 894,

901 (9th Cir. 2005), the court held that a district court order attesting to a voluntary stipulation

between petitioner and INS to stay deportation pending the BIA’s adjudication of a motion to

reopen conveyed “prevailing party” status because it awarded a substantial portion of the relief

sought. However, in Aronov v. Chertoff, 562 F.3d 84, 92 (1st Cir. 2009) (en banc), the First

Circuit held that a judicially approved stipulation to remand the case to the agency was not

sufficient to confer prevailing party status, reasoning, in large part, that the court did not retain

jurisdiction to enforce the stipulation. Remand orders are further discussed in the next section.

In Li v. Keisler, 505 F.3d 913, 917-18 (9th Cir. 2007), the court held an order issued by a circuit

mediator granting an unopposed motion to remand after the petitioner filed an opening brief is

11

sufficient to satisfy Buckhannon where the orders advanced the petitioners’ goals and constituted

material alterations of the parties’ legal relationship.

District courts also have held that an order granting mandamus to adjudicate an adjustment of

status or naturalization application is sufficient to convey prevailing party status. See, e.g.,

Aboushaban v. Mueller, 475 F. Supp. 2d 943, 946 (N.D. Cal. 2007); Osman v. Mukasey, 553 F.

Supp. 2d 1252 (W.D. Wash. 2008) (prevailing party status established and fees granted where

district court ordered adjudication of petitioner’s naturalization application pursuant to 8 U.S.C.

§ 1447(b)); Liu v. Chertoff, 538 F. Supp. 2d. 1116 (D. Minn. 2008) (same); Alghawi v. Mukasey,

543 F. Supp. 2d 1252 (W.D. Wash. 2008) (same). Significantly, in mandamus cases, generally, a

court must issue an order requiring the agency to act in order for a litigant to be eligible for fees;

otherwise, the court is likely to find that the “catalyst theory” applies, which, as explained above,

does not provide for recovery under EAJA.

A judicial pronouncement that the government has violated the Immigration and Naturalization

Act or the Constitution without any grant of judicial relief will not serve as a basis for an award

of attorneys’ fees. Buckhannon, 532 U.S. at 606-607. In addition, changes in the actual

circumstances of the parties that are not related to the federal court case may not be used as the

basis for an EAJA fee award. Id. For example, if the BIA grants a motion to reopen or

reconsider after the filing of federal lawsuit challenging the final removal order, the petitioner in

the federal lawsuit is not considered a prevailing party if the federal case has been mooted out by

the BIA’s order. Similarly, if the agency acts after a petitioner files a mandamus action but

before the district court rules, the petitioner is not considered a prevailing party because the

agency’s action moots the district court case. In the absence of an enforceable court ordered

judgment or remedy, a court is not likely to find prevailing party status as defined by the Court in

Buckhannon. See, e.g., Ma v. Chertoff, 547 F.3d 342, 344 2d Cir. 2008) (plaintiff was not a

prevailing party where USCIS corrected erroneous denial of adjustment application and adjusted

plaintiff’s status after case filed but before court acted); Morillo-Cedron v. District Director for

the U.S. Citizenship & Immigration Servs., 452 F.3d 1254, 1257-58 (11th Cir. 2006) (prevailing

party status was not conferred where USCIS voluntarily granted permanent resident status before

the district court entered a final judgment); Perez-Arellano v. Smith, 279 F.3d 791, 795 (9th Cir.

2002) (finding plaintiff was not a prevailing party where he naturalized during litigation, and

district court dismissed the case as moot).

In light of Buckhannon, if the government grants the relief sought before the court decides the

case on the merits, memorializing the victory in a court-approved order or settlement will

preserve eligibility for an award of EAJA fees. In this situation, counsel also may face tactical

and ethical questions, including whether to attempt to negotiate fees and costs in the order or

settlement agreement or wait and file an EAJA fee request after the court approves the order or

settlement agreement.

3. Court Ordered Remand

Whether a court-ordered remand to the Board confers prevailing party status can be tricky. The

primary Supreme Court case on this issue is Shalala v. Schaefer, 509 U.S. 292 (1993). In

Shalala, the Supreme Court held that a social security claimant who obtained a reversal and

12

remand of a Secretary of Health and Human Services’ administrative decision pursuant to

sentence four of 42 U.S.C. § 405(g) was a prevailing party. 509 U.S. at 300-301. Significantly,

in cases remanded under this section, the court enters judgment in the claimant’s favor

immediately and the litigation is terminated. In cases remanded under another social security

provision, the court postpones entering judgment until after post-remand agency proceedings

have been completed and their results are filed with the court. The Court’s opinion in Shalala

relied heavily on this distinction.

Significantly, in cases involving remand orders for further proceedings, courts generally only

allow EAJA fee recovery for fees and costs incurred in the federal court litigation, not for work

done before the agency in remanded proceedings. See n.3, supra.

a. Remand Where the Court Enters Judgment

The Supreme Court’s decision in Shalala supports finding prevailing party status when a court

orders remand to the agency, enters a formal judgment immediately and does not retain

jurisdiction over the federal court action.

In Rueda-Menicucci v. INS, 132 F.3d 493 (9th Cir. 1997), the Ninth Circuit granted the petition

for review of the denial of petitioners’ asylum applications and remanded their case to the BIA

for further proceedings in light of its decision. The court’s order terminated the proceedings, and

the court did not retain jurisdiction over future appeals. Petitioners then sought fees under

EAJA. The Ninth Circuit reasoned that, since it could “perceive no difference between a

‘sentence four’ remand under 42 U.S.C. § 405(g) (at issue in Shalala) and a remand to the BIA

for further proceedings,” petitioners who obtain such remand are prevailing parties. Rueda-

Menicucci, 132 F.3d at 495. In Li v. Keisler, 505 F.3d 913, 918 (9th Cir. 2007), the court

extended this ruling to allow the recovery of fees in cases where the government moves for

remand to the BIA after briefing has commenced, although not completed, and remand is granted

by a circuit mediator.

The Seventh and Third Circuits have similarly ruled that a petitioner who wins remand for

further proceedings is a prevailing party within the meaning of EAJA. The courts reasoned that

petitioners’ situations were analogous to the Supreme Court’s decision in Shalala and also noted

that their conclusions were consistent with Rueda-Menicucci v. INS. Muhur v. Ashcroft, 382

F.3d 653, 654-55 (7th Cir. 2004); Johnson v. Gonzales, 416 F.3d 205, 209-10 (3d Cir. 2005).

See also Salem v. United States INS, 122 F. Supp. 2d 980, 984 (C.D. Ill. 2000) (finding remand

to the INS conferred prevailing party status under the rationale of Rueda-Menicucci).

As a practical matter, because the question of whether a party has prevailed on a significant issue

in litigation potentially could be equated with whether the party requested the relief obtained, it

is advisable to ask the court to vacate and/or remand the decision of the immigration service or

court when drafting a request for relief.

b. Remand Where the Court Postpones Entering Judgment

13

If the court orders remand to the agency, postpones entering judgment until the completion of

post-remand agency proceedings, and also retains jurisdiction over the federal court action, the

petitioning party may be eligible for prevailing party status if they are successful before the

agency on remand.19

In this situation, there is some authority suggesting that it may be possible to recover fees for

administrative work on remand. In Ardestani v. INS, 502 U.S. 129, 135 (1991), the Supreme

Court held that courts cannot award EAJA fees for initial work done in administrative

immigration proceedings. Since Ardestani, courts generally 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.20

c. Remand Orders in Naturalization Cases

In Aronov v. Chertoff, 562 F.3d 84, 92 (1st Cir. 2009) (en banc), the First Circuit rejected a claim

that a court order granting a motion to remand the case to U.S. Citizenship and Immigration

Services (USCIS) for adjudication of a naturalization application pursuant to 8 U.S.C. § 1447(b)

conferred prevailing party status where the order did not resolve any aspect of the dispute

between the parties. The court distinguished the situation before it from a court-ordered consent

decree (which would give rise to EAJA eligibility) because there was no appraisal of the merits

of the litigation, the court did not order USCIS to do anything, and the order did not contain a

provision for future enforcement. Id. at 92-93. See also Iqbal v. Holder, 693 F.3d 1189, 1195

(10th Cir. 2012) (remand order for adjudication of naturalization application that favored the

plaintiff but did not entitle him to some method of enforcement on the merits of his claim did not

qualify him as a “prevailing party”).

Significantly, however, in other naturalization cases, if the remand order satisfies the

Buckhannon criteria of a consent decree,21

it will confer prevailing party status. See, e.g., Al-

Maleki v. Holder, 558 F.3d 1200, 1206 (10th Cir. 2009) (court order instructing USCIS to

administer oath of citizenship after the agency stipulated plaintiff was entitled to naturalization

19

Shalala, 509 U.S. 299-300 (discussing Sullivan v. Hudson, 490 U.S. 877, 892 (1989)). 20

Castaneda-Castillo v. Holder, 723 F.3d 48, 59 (1st Cir. 2013) (holding administrative

proceedings conducted after remand of asylum application were so “intimately related” to

judicial proceedings ordering remand that they had to be considered part of same “civil action”)

(quotation omitted); Former Emples. of Motorola Ceramic Prods. v. United States, 336 F.3d

1360, 1361 (Fed. Cir. 2003) (“We hold that parties who secure a consent order remanding a

proceeding to an administrative agency because of an alleged error on the merits, where the court

also retains jurisdiction, are ‘prevailing parties’ under EAJA if they succeed on the merits in the

remand proceeding.”) (quotation omitted); Davidson v. Veneman, 317 F.3d 503, 505-06 (5th Cir.

2003) (where district court ordered remanded to Farm Services Agency and stayed motion for

EAJA fees pending completion of remand proceedings and plaintiff was successful in remand

proceedings, plaintiff was entitled to prevailing party status). 21

Aronov v. Chertoff, 562 F.3d 84, 90-91 (1st Cir. 2009) (en banc) (discussing

Buckhannon’s requirements that consent decree must be “court-ordered,” judicially approved,

and provide for judicial oversight to enforce the parties’ obligations).

14

imposed a judicially enforceable obligation that satisfies Buckhannon); Lord v. Chertoff, 526 F.

Supp. 435, 438 (S.D.N.Y. 2007) (court approved consent agreement for USCIS to approve

naturalization application satisfied Buckhannon standard because court retained jurisdiction to

enforce the agreement if necessary); Berishev v. Chertoff, 486 F. Supp. 2d 202, 204-05 (D. Mass.

2007) (conciliatory remand order for adjudication of naturalization application satisfied

Buckhannon Court’s interpretation of “prevailing party”).

B. Substantial Justification

An initial EAJA fee application must, at a minimum, allege that the position of the United States,

which is both the agency’s underlying position and its litigation position, was not substantially

justified. 28 U.S.C. § 2412(d)(1)(B).22

However, as the government routinely attempts to

demonstrate that its position was substantially justified, it is advisable to fully brief this

important issue in the initial fee application rather than waiting to brief it in the reply brief, when

page space more limited.

Once the petitioning party establishes prevailing party status, the government can avoid payment

of fees only if it can show that its pre-litigation conduct and litigation position were

“substantially justified.” In order to meet this burden of proof, the government must show that

its position has a reasonable basis both in law and in fact.23

Significantly, the government must meet this threshold twice -- it must independently establish

that the agency misconduct that gave rise to the litigation was substantially justified and that its

litigation positions also were substantially justified.24

22

In Scarborough v. Principi, 541 U.S. 401 (2004), the Supreme Court held that a timely

filed EAJA fee application may be amended after the 30-day filing period has run to cure an

initial failure to allege that the government’s position in the litigation lacked substantial

justification. 23

See Pierce v. Underwood, 487 U.S. 552, 565 (1988) (defining substantially justified as

“‘justified in substance or in the main’ -- that is, justified to a degree that could satisfy a

reasonable person”); Aronov v. Chertoff, 562 F.3d 84, 94-95 (1st Cir. 2009) (en banc) (“The [pre-

litigation position] test is whether a reasonable person could think the agency position is

correct”) (citing Pierce, 487 U.S. at 566 n.2); Saysana v. Gillen, 614 F.3d 1, 5 (1st Cir. 2010) (“it

is not necessary for the Government’s position to be “justified to a high degree”) (internal

citation omitted). 24

28 U.S.C. § 2412(d)(2)(D); Commissioner, INS v. Jean, 496 U.S. 154, 158-160 (1990);

Dantran, Inc. v. United States DOL, 246 F.3d 36, 41 (1st Cir. 2001) (“To satisfy its burden, the

government must justify not only its pre-litigation conduct but also its position throughout

litigation.”); Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988) (“The inquiry into the existence of

substantial justification therefore must focus on two questions: first, whether the government was

substantially justified in taking its original action; and, second, whether the government was

substantially justified in defending the validity of the action in court”).

15

Thus, if the court finds that the government’s underlying, pre-litigation conduct lacks substantial

justification, the court need not consider whether its litigation positions were substantially

justified.25

In some cases involving petitions for review of a BIA decision, the government has argued that

the relevant “position of the United States” was the position of the Department of Homeland

Security (DHS), not the position that the IJ or BIA set forth in their decisions, because the

Executive Office for Immigration Review (which houses both the immigration courts and the

BIA) and DHS are no longer in the same executive department following the 2002 enactment of

the Homeland Security Act. In Thangaraja v. Gonzales, 428 F.3d 870, 873 (9th Cir. 2005), the

Ninth Circuit rejected this argument, finding that it “completely lacks justification.” 428 F.3d at

873. The court affirmed that the IJ’s decision, summarily affirmed by the BIA, constituted “the

action . . . by the agency upon which the civil action is based” under the plain language of the

EAJA statute, and thus, the relevant pre-litigation position. 428 F.3d at 873. The court also

found that nothing in the government reorganization resulting from the Homeland Security Act

affected this conclusion because EOIR and DHS both “are part of the executive branch of the

United States government, despite their mutual independence” and “the manner in which

responsibilities are divided within the executive branch is immaterial to determining” the

underlying government action upon which the petition for review was based. 428 F.3d at 873.26

A court evaluates whether the government’s position is reasonable based on several factors,

including the clarity of the governing law;27

the foreseeable length and complexity of the

litigation; the consistency of the government’s position; views expressed by other courts on the

25

Commissioner, INS v. Jean, 496 U.S. 154, 160 (1990) (“The single finding that the

Government's position lacks substantial justification, like the determination that a claimant is a

‘prevailing party,’ thus operates as a one-time threshold for fee eligibility.”); Roanoke River

Basin Ass'n v. Hudson, 991 F.2d 132, 138 (4th Cir. 1993) (“…Jean instructs that a single finding

of governmental misconduct compelling a party to resort to litigation or to prolong litigation can

open the door to recovery under the EAJA. . .”); Anthony v. Sullivan, 982 F.2d 586, 589 (D.C.

Cir. 1993) (stating that “once a court determines that the government's position on the merits of

the litigation is not substantially justified, it may not revisit that question as to any component of

the dispute.”) (citations omitted). 26

See also Singh v. Gonzales, 502 F.3d 1128 (9th Cir. 2007). 27

However, the government’s position is not per se justifiable simply because the case

involves a new statute or an issue of first impression. Gutierrez v. Barnhart, 274 F.3d 1255,

1261 (9th Cir. 2001) (“There is no per se rule that EAJA fees cannot be awarded where

the government's position contains an issue of first impression”). But see Cornella v. Schweiker,

741 F.2d 170, 172 (8th Cir. 1984) (holding government reasonable in defending a district court

judgment where “all of the purely legal issues were questions of first impression”); Vacchio v.

Gonzales, 404 F.3d 663, 675 (2d Cir. 2005) (holding that an unsettled question of law combined

with a government position that was “far from unreasonable” amounted to substantial

justification); Cody v. Caterisano, 631 F.3d 136, 142 (4th Cir. 2011) (“litigating cases of first

impression is generally justifiable”); Bah v. Cangemi, 548 F.3d 680, 684 (8th Cir. 2008) (“The

government may… be justified in litigating a legal question that is unsettled in [a] circuit”)

(emphasis added).

16

merits; legal merits of the government’s position;28

and the stage at which the litigation was

resolved. See generally Jean v. Nelson, 863 F.2d 759, 767-68 (11th Cir. 1988) affirmed by

Commissioner, INS v. Jean, 496 U.S. 154 (1990). The agency’s position may be substantially

justified “even if a court ultimately determines the agency’s reading of the law was not

correct.” Aronov, 562 F.3d at 94 (1st Cir.2009) (en banc) (citing Pierce, 487 U.S. at 566 n.2).

The government’s position must be substantially justified as a whole.29

Courts generally do not

award a portion of fees by issue. Gatimi v. Holder, 606 F.3d 344, 349 (7th Cir. 2010). In

Hensley v. Eckerhart, 461 U.S. 424, 435 (1983), the Supreme Court established that fees for all

time expended is recoverable where the litigant has achieved “excellent results” in his challenge

to an agency action. The Court stated that a court’s “rejection or failure to reach certain grounds

is not a sufficient reason for reducing a fee. The result is what matters.” Id. Hensley directs that

a party is entitled to full recovery based on the “overall relief obtained,” not merely a calculation

of hours expended on a claim-by-claim basis. Id. at 435. See also Sorenson v. Mink, 239 F.3d

1140, 1146 (9th Cir. 2001) (plaintiffs were entitled to full recovery of fees because they

“accomplished their mission”) (internal quotations omitted).

However, a court may deny recovery of fees if it finds the government’s position was

substantially justified regarding the one issue on which the plaintiff prevailed. In Hardisty v.

Astrue, the Ninth Circuit held that plaintiff was not entitled to EAJA fees because the

government’s position was substantially justified on the sole issue on which he prevailed. 592

F.3d 1072, 1077 (9th Cir. 2010). Finding there was “no basis for EAJA fee shifting,” the court

also refused to award fees on alternative grounds not reached by the district court. Id. at 1075.

The court reasoned that EAJA does not provide recovery for unaddressed claims where the

government was substantially justified on the issue on which the plaintiff prevailed. Hardisty,

592 F.3d at 1078.

In some circuits, there is case law finding a lack of substantial justification where the

government’s position violates the Constitution, a statute, or its own regulations. See, e.g.,

Meinhold v. U.S. Dep't of Def., 123 F.3d 1275, 1278 amended 131 F.3d 842 (9th Cir. 1997) (the

government’s position is not substantially justified where the agency violates its own regulations

that are clear and unambiguous); Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 967 (D.C.

Cir. 2004) (concluding that “the agency’s position lacked substantial justification because it was

‘wholly unsupported by the text’ of the applicable regulations.”) (citation omitted).

28

See, e.g., Floroiu v. Gonzales, 498 F.3d 736, 749 (7th Cir. 2007) (holding the

government’s position was not substantially justified because, in part, the government provided

no legal authority to support it); Tchemkou v. Mukasey, 517 F.3d 506, 510 (7th. Cir. 2008)

(“having failed to provide any support for th[eir] argument, the government also has failed to

show that its position was substantially justified”); Thangaraja v. Gonzales, 428 F.3d 870, 875

(9th Cir. 2005) (holding Attorney General’s arguments on the merits of the plaintiff’s asylum

and withholding of removal claims were substantially unjustified because they were “entirely

unsupported by the record”). 29

Commissioner, INS v. Jean, 496 U.S. 154, 161-62 (1990).

17

In Li v. Keisler, 505 F.3d 913, 919 (9th Cir. 2007), where the government sought and was

granted a voluntary remand, the court held that an assessment of substantial justification (and

special circumstances) requires the court to examine “the likely reason behind the voluntary

remand in question.” The court held the petitioners are entitled to fees where the government

requested a remand “to reevaluate the prior proceedings due to a misapplication of, or failure to

apply, controlling law and where there is no new law or claims of new facts.” Id. The court

distinguished such situations from cases where the government may be justified in seeking a

remand “due to intervening case law, because of unclear controlling case law, or where the

agency should have an opportunity to adjudicate a new claim for relief in the first instance.” Id.30

Once the court determines that the government’s position lacks substantial justification, the

prevailing party is presumptively eligible for fees for all phases of the federal case unless the

prevailing party has “unreasonably protracted” a portion of the litigation, which would warrant

exempting fees for that portion of the litigation from the award.31

C. Special Circumstances

The government has the burden of proving the existence of special circumstances that would

make a fee award unjust.32

This “special circumstances” exception to awarding fees was

intended as a “safety valve” to allow the government to advance “novel but credible” legal

theories and to give courts discretion to deny awards for equitable considerations. This

provision of the EAJA is to be narrowly construed so as to not interfere with or defeat

Congress’s purpose in passing the EAJA.33

Special circumstances include close or novel questions.34

Equitable considerations can mean

that the “prevailing party” acted in bad faith or has “unclean hands.”35

The Ninth Circuit has

held that the “the government’s request for a voluntarily remand [to the BIA] is not a ‘special

circumstance’ that would relieve the government from the applicants’ statutory entitlement to

EAJA fees.” Li, 505 F.3d at 918, 920 n.1. Rather, the court collapsed its discussion of the

special circumstances exception with its substantial justification analysis, holding that the court

must examine “the likely reason behind the voluntary remand in question.” Id. at 919.

30

See also Kholyavskiy v. Holder, 561 F.3d 689, 691-92 (7th Cir. 2009) (holding the

government’s position was substantially justified, in part, because of the uncertainty in the law

arising from the novelty of the question at bar); Hardesty v. Astrue, 435 F. App’x 537, 540 (7th

Cir. 2011) (affirming government was substantially justified in defending the position of an

administrative law judge who did not have access to evidence that claimant later produced to

supplement the record). 31

28 U.S.C. § 2412(d)(2)(D); Commissioner, INS v. Jean, 496 U.S. 154, 161 (1990). 32

28 U.S.C. § 2412(d)(1)(A); Abela v. Gustafson, 888 F.2d 1258, 1266 (9th Cir. 1989). 33

Martin v. Heckler, 773 F.2d 1145, 1149 (11th Cir. 1985). 34

National Truck Equip. Ass'n v. NHTSA, 972 F.2d 669, 671 (6th Cir. 1992); S & H Riggers

& Erectors, Inc. v. OSHRC, 672 F.2d 426, 431 (5th Cir. 1982). 35

Taylor v. U.S., 815 F.2d 249, 252-254 (3d Cir. 1987); Midwest Research Institute v.

United States, 554 F. Supp. 1379, 1392 (W.D. Mo. 1983), aff’d, 744 F.2d 635 (8th Cir. 1984);

Oguachuba v. INS, 706 F.2d 93, 98 (2d Cir. 1983).

18

D. Net Worth

In order to satisfy the net worth requirement under EAJA, an individual plaintiff’s net worth

must not exceed $2,000,000 at the time the lawsuit was filed. 28 U.S.C. § 2412(d)(2)(B). A

corporation must establish that it did not have more than 500 employees and its net worth did not

exceed $7,000,000 at the time the lawsuit was filed. 28 U.S.C. § 2412(d)(2)(B). A non-profit

entity must only show that it did not have more than 500 employees at the time the lawsuit was

filed.

Net worth is calculated for each individual named party to the lawsuit. Net worth should, at a

minimum, be documented by submitting a signed affidavit attesting that the petitioning party met

the appropriate requirements at the time the lawsuit was filed.36

In light of Astrue v. Ratliff, 560

U.S. 586 (2010), discussed in detail below, it is advisable for such an affidavit also to attest to an

assignment of any EAJA award payment to counsel and, if true, that the litigant does not owe a

federal debt.

VI. CALCULATING FEES, RATES AND ADJUSTMENT FOR INFLATION

EAJA fees are based upon “prevailing market rates for the kind and quality of the services

furnished, except . . . attorney fees shall not be awarded in excess of $125 per hour unless the

court determines that an increase in the cost of living or a special factor, such as the limited

availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C.

§ 2412(d)(2)(A).

Thus, the statutory hourly rate of compensation for attorneys is $125 for cases commenced on or

after March 29, 1996. This amount can be “adjusted” or “enhanced” for inflation based on cost

of living adjustments (COLA) or the presence of a special factor.

A. EAJA Statutory Rate Adjusted for Inflation

Most courts calculate the “adjustment” or “enhancement” for inflation by using the Consumer

Price Index for All Urban Consumers (CPI-U).37

The CPI-U is published by the Bureau of

Labor Statistics and is updated monthly. It can be located on-line at

http://www.bls.gov/cpi/home.htm. The courts measure the COLA as of March 1996, when the

statutory hourly rate of attorney compensation was raised from $75 per hour to $125 per hour.

The March 1996 CPI-U is 155.7 and also can be located on-line at the link above.

One formula that is often used for calculating the cost of living adjustment is:

36

United States v. Heavrin, 330 F.3d 723, 732 (6th Cir. 2003); Shooting Star Ranch, LLC v.

United States, 230 F.3d 1176, 1178 (10th Cir. 2000). 37

See, e.g., Harris v. Sullivan, 968 F.2d 263, 264-266 (2d Cir. 1992); Dewalt v. Sullivan,

963 F.2d 27, 27-30 (3d Cir. 1992); Sullivan v. Sullivan, 958 F.2d 574, 578 (4th Cir. 1992);

Begley v. Secretary of HHS, 966 F.2d 196, 199-200 (6th Cir. 1992); Johnson v. Sullivan, 919

F.2d 503, 504 (8th Cir. 1990); Ramon-Sepulveda v. INS, 863 F.2d 1458, 1463 (9th Cir. 1988).

19

$125 x (current CPI-U)

(March 1996 CPI-U)

See Ramon-Sepulveda v. INS, 863 F. 2d 1458, 1463, n.4 (9th Cir. 1988); Thangaraja v.

Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005); Role Models Am., Inc. v. Brownlee, 353 F.3d

962, 969 (D.C. Cir. 2004); Edwards v. Barnhart, 214 F. Supp. 2d 700, 702, n.3 (W.D. Tex.

2002); Walker v. Barnhart, 302 F. Supp. 2d 1072, 1075 (S.D. Iowa 2002).

Some cases suggest that the regional CPI-U, and not the national, is appropriate to use in

computing the EAJA rate adjusted for inflation.38

The Ninth Circuit has clarified that the

national CPI-U, and not the regional, should be used in fee applications filed in that circuit.39

For individuals in areas with higher costs of living, the use of the regional CPI-U would mean a

higher statutory rate of compensation.

Some courts have required that COLA calculation be done for the year of the fee award. In the

equation set forth above, this would mean that the “current” CPI-U reflects the figure of the

current year. 40

More recently, however, courts have applied a COLA adjustment for each year

in which the work was performed. 41

In the equation set forth above, this means that the hourly

rate for each year attorney work was performed would require a separate COLA rate calculation

using a different CPI-U figure for each year.

The Ninth Circuit posts the applicable EAJA statutory maximum hourly rate adjusted for

increases in the cost of living for each year since 2001. The rate chart is located at:

http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039.

B. Enhanced Rates

1. Establishing Special Factors Merit Enhanced Rates

Attorney rates also may be increased if a special factor justifies a higher fee. 28 U.S.C. §

2412(d)(2)(A)(ii). The EAJA statute provides one example of a special factor, “the limited

availability of qualified attorneys for the proceedings involved.” Id. The Supreme Court has

addressed the meaning of this statutory phrase as follows:

38

See Chen v. Slattery, 842 F. Supp. 597, 600 n.2 (D.D.C. 1994); Stanfield v. Apfel, 985 F.

Supp. 927, 931 (E.D. Mo. 1997); Peterson v. Shalala, 818 F. Supp. 241, 245 n. 3 (S.D. Ill. 1993);

Porter v. Astrue, CV 11-2304 (JEB), 2013 WL 5978623 at *2 (D.D.C. Nov. 12, 2013). See also

Hamblen v. Colvin, 3:12-CV-2009-BH, 2014 WL 1516157 at 2* n.7 (N.D. Tex. Apr. 17, 2014)

(discussing case law that debates whether courts should apply the national, regional, or local CPI

when calculating an adjustment). 39

See Thangaraja v. Gonzales, 428 F.3d 870, 877 (9th Cir. 2005). 40

See, e.g., Johnson v. Sullivan, 919 F.2d 503, 504 (8th Cir. 1990); Garcia v. Schweiker,

829 F.2d 396, 401-02 (3d Cir. 1987). 41

See, e.g., Sorenson v. Mink, 239 F.3d 1140, 1143 (9th Cir. 2001); Wilkett v. Interstate

Commerce Com., 857 F.2d 793, 875 (D.C. Cir. 1998); Perales v. Casillas, 950 F.2d 1066, 1076

(5th Cir. 1992).

20

We think it refers to attorneys having some distinctive knowledge or specialized

skill needful for the litigation in question—as opposed to an extraordinary level of

general lawyerly knowledge and ability useful in litigation. An example of the

former would be an identifiable practice specialty such as patent law, or

knowledge of foreign law or language.

Pierce v. Underwood, 487 U.S. 552, 572 (1988).

Convincing a court to grant enhanced rates is challenging. In one case, the court acknowledged

that counsel’s representation amounted to “a herculean effort” in that it lasted over two decades

and required litigation before both administrative and federal courts, but nevertheless the court

denied fees because counsel did not demonstrate that “distinctive knowledge” or “specialized

skill” was essential to the petition for review for which he sought fees. Castaneda-Castillo v.

Holder, 723 F.3d 48, 75 (1st Cir. 2013).

Some courts have recognized that a specialized knowledge of immigration law could warrant

enhanced attorney rates.42

In the Ninth Circuit, an enhanced rate may be warranted if the attorney

possesses distinctive knowledge and skills developed through a practice specialty; the skills are

42

See, e.g., Muhur v. Ashcroft, 382 F.3d 653, 656 (7th Cir. 2004) (noting “immigration

lawyers are not ipso facto entitled to fees above the statutory ceiling” finding immigration

expertise, “such as knowledge of foreign cultures or of particular, esoteric nooks and crannies of

immigration law,” warranted a special factor rate adjustment); Nadarajah v. Holder, 569 F.3d

906, 914 (9th Cir. 2009) (holding enhanced rates were appropriate because the “case involved

more than established principles of [immigration] law with which the majority of attorneys are

familiar”); Rueda-Menicucci v. INS, 132 F.3d 493 (9th Cir. 1997) (stating “a specialty in

immigration law could be a special factor warranting an enhancement of the statutory rate” if

that specialty is “needful for the litigation in question”); Pollgreen v. Morris, 911 F.2d 527, 537-

38 (11th Cir. 1990) (recognizing that a “special factor” rate adjustment might be appropriate for

attorneys who have a special expertise in immigration law); Douglas v. Baker, 809 F. Supp. 131,

135 (D.D.C. 1992) (awarding enhanced EAJA rate based, in part, on attorneys extensive

experience in immigration law). But see Johnson v. Gonzales, 416 F.3d 205, 213 (3d Cir. 2005)

(enhancement not warranted in case involving “straightforward application of the substantial

evidence and asylum standards…”); Castaneda-Castillo v. Holder, 723 F.3d 48, 76 (1st Cir.

2013) (“no special skill or distinctive knowledge, apart from that obtained by immigration

lawyers pursuant to their general experience, was necessary for the plaintiff to prevail”) (internal

citations omitted); Perales v. Casillas, 950 F.2d 1066, 1078-79 (5th Cir. 1992) (immigration

lawyers, unlike patent lawyers and experts in foreign law, are not per se specialized for special

factor assessment purposes); National Ass'n of Mfrs. v. United States DOL, 962 F. Supp. 191

(D.D.C. 1997) (“Unlike patent law, no technical education is necessary to excel in either”

immigration or administrative law). See also Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th

Cir. 2005) (declining to adopt a per se rule that immigration law is a specialty area similar to

practicing patent law); Atlantic Fish Spotters Ass'n v. Daley, 205 F.3d 488, 492-93 (1st Cir.

2000) (finding enhanced EAJA rate was improper because special experience in fisheries law

was not required for competent representation in the case).

21

needed in the litigation; and the skills are not available elsewhere at the statutory rate. Love v.

Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991) (citation omitted).

Special factors do not include the general limited availability of qualified attorneys, litigation

that involves novel and difficult issues, the undesirability of the case, expertise of counsel, or the

results obtained. These factors are considered “applicable to a broad spectrum of litigation ....”

Pierce, 487 U.S. at 573.

When reviewing whether to grant enhanced rate requests, courts will want to see evidence of the

attorney’s particular qualifications and how those qualifications were needed in the litigation and

information regarding the lack of availability of attorneys who could litigate the case.43

Declarations from other attorneys will help document a claim for enhanced rates based on

expertise in immigration law. The declarations could explain why immigration law expertise

was necessary to litigate the case and further attest that petitioner/s would be unable to find an

attorney with the requisite immigration expertise at the $125 EAJA statutory rate. See, e.g.,

Nadarajah v. Holder, 569 F.3d 906, 915 (9th Cir. 2009) (quoting Van Der Hout Declaration as

stating “the vast majority of the immigration bar of this country does not engage in federal court

litigation, and of those that do, only a very small number would be willing to take on a case of

this complexity. There are no qualified attorneys to my knowledge who would have undertaken

such litigation at the EAJA statutory rate of $125, even adjusted for inflation”).

2. Establishing the Prevailing Market Rate for Attorneys

An attorney claiming entitlement to an enhanced rate based on special factors must establish the

prevailing market rate for services, 28 U.S.C. § 2412(d)(2)(A)(ii). This is true regardless

whether the attorney represented the client pro bono or for a fee, or the attorney works for a non-

profit organization or a private firm. Blum v. Stenson, 465 U.S. 886, 895-96 (1984); Nadarajah,

569 F.3d at 916.

The prevailing market rate need not reflect the rate charged to the client.44

Therefore, counsel

need not submit a copy of the fee agreement to the court for the court to determine the

43

Floroiu v. Gonzales, 498 F.3d 746, 749 (7th Cir. 2007) (“[The court] do[es] not consider

[a] blanket statement of the difficulty of the issues presented and the years of experience of the

practitioner involved sufficient to justify piercing the statutory ceiling”). 44

See United States v. $186,416.00 in U.S. Currency, 642 F.3d 753, 755 (9th. Cir. 2011)

(“Under § 1988 and EAJA, the actual fee agreement does not act as a cap on the amount of

statutory attorney fees awarded”); Phillips v. GSA, 924 F.2d 1577, 1582-83 (Fed Cir. 1991)

(holding the prevailing party was entitled to attorney fees in excess of the $2,500 she was

obligated to pay, in light of a fee arrangement with her attorney that any additional payment

obligation would be contingent upon success and based on a statutory fee award if she

prevailed); Cornella v. Schweiker, 728 F.2d 978, 986 (8th Cir. 1984) (legislative history of EAJA

clarifies that attorney fees should be based on prevailing market rate without reference to the fee

arrangements between the attorney and client). Accord Corder v. Gates, 947 F.2d 374, 378 n.3

(9th Cir. 1991) (“[I]t is clear that an award of a ‘reasonable’ attorney’s fee [under § 1988] may

22

appropriateness of the EAJA fee award. Nadarajah, 569 F.3d at 916 (holding that government’s

objections that counsel did not submit retainer agreement was “not supported by legal authority

and lack merit”); Arredondo v. Holder, No. 08-73835, slip op. at 9 (9th Cir. Nov. 30, 2012); Li v.

Holder, No. 07-72560, slip op. at 3 (9th Cir. July 2, 2012).

Some courts consider, or rely on, the Laffey Matrix as a source for prevailing market rate based

on an attorney’s level of experience. In Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354, 371

(D.D.C. 1983), the court found that hourly rates for attorneys practicing civil law in

the Washington, D.C., metropolitan area could be categorized by years in practice and adjusted

yearly for inflation. The Department of Justice regularly updates the Laffey Matrix.45

Some

courts have adopted the Laffey Matrix, or an adjusted version of it, while others have rejected

it.46

Counsel are advised to review circuit law addressing the Laffey Matrix before relying on it to as

a source of prevailing markets rates. In some geographical areas, the rates in the Laffey Matrix

may fall below market rate. See, e.g., In Re HPL Technologies, Inc. Securities Litigation, 366 F.

Supp. 2d at 921-22. The Laffey Matrix also is problematic because it does not contain prevailing

market rates for an attorneys practicing in excess of 20 years.

“. . . [P]laintiffs may also provide surveys to update the matrix; affidavits reciting the precise

fees that attorneys with similar qualifications have received from fee-paying clients in

comparable cases; and evidence of recent fees awarded by the courts or through settlement to

attorneys with comparable qualifications handling similar cases.” See Covington v. D.C., 57

F.3d 1101, 1109 (D.C. Cir. 1995). Market rate surveys are available to demonstrate prevailing

rates based on specialization, location, and years of experience. Sworn declarations from other

attorneys of similar expertise and years of experience attesting to their individual and/or firm’s

hourly rate also provide evidence of prevailing market rates. See, e.g., Nadarajah, 569 F.3d at

be made to a prevailing plaintiff notwithstanding the fact that the plaintiff’s attorney has agreed

to accept a smaller fee, or even no fee at all”). 45

It is available at: http://www.justice.gov/usao/dc/divisions/Laffey_Matrix_2003-

2013.pdf. The Laffey Matrix consists of a table which provides hourly rates, based on years of

experience, for attorneys, paralegals and law clerks in the Washington, D.C. area. 46

Compare Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694, 709 (3d Cir. 2005)

(adopting Adjusted Laffey Matrix); In Re HPL Technologies, Inc. Securities Litigation, 366 F.

Supp. 2d 912, 921-22 (N.D. Cal. 2005) (relying on Laffey Matrix but adjusting rates upwards

based upon the higher costs of living in Los Angeles and other California cities) with Robinson v.

Equifax Information Services, LLC, 560 F.3d 235, 241 (4th Cir. 2009) (finding Laffey Matrix

“insufficient to carry [counsel’s] burden of proof, was not binding on a district court in the

Fourth Circuit, and that counsel must present evidence of prevailing market rates for attorneys in

the geographical area where counsel practices). In order to convert Laffey Matrix rates to

prevailing market rates, some courts use locality-based comparability payments for federal

employees set forth in Schedule 9 of 5 U.S.C. § 5332. See, e.g., Theme Promotions, Inc. v. News

Am. Mktg. FSI, Inc, 731 F. Supp. 2d 937, 950 (N.D. Cal. 2010). The court compares the locality

rate with that of the Washington-Baltimore area, and applies any increase to the Laffey Matrix

rate.

23

911-15. For example, an attorney in Los Angeles with 8-10 years of immigration experience

who is claiming an enhanced rate of $300 per hour could document the prevailing market rate for

his or her services by submitting one or more declarations from other immigration lawyers in

Los Angeles with 8-10 years of similar immigration experience attesting that they routine charge

an hourly rate of $300 (or more).

C. Law Clerk, Paralegal and Expert Witness Rates

Law clerks, paralegals and expert witnesses also may be compensated under EAJA at the

prevailing market rate.47

Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 590 (2008). A court

may reduce a fee request for clerical work done by paralegals and interns if it concludes that the

work should have been subsumed in firm overhead, rather than directly billed.48

The prevailing market rate need not reflect the rate charged to the client. However, the statute

provides that expert witnesses cannot be compensated at a “rate in excess of the highest rate of

compensation for expert witnesses paid by the United States.” 28 U.S.C. § 2412(d)(2)(A)(i).

Market rate surveys often contain information on prevailing rates for law students and paralegals.

Counsel also can submit declarations from other attorneys attesting to the rates paid to law

students and paralegals in the area to establish prevailing rates.

VII. EAJA AWARD PAYMENTS

The Supreme Court, in Astrue v. Ratliff, held unequivocally that an EAJA award is payable to the

litigant, not his or her attorney. 60 U.S. 586, 596-97 (2010). The Supreme Court reasoned that

the government’s practice of paying fees to counsel in cases where the prevailing party assigned

the fee award to counsel bolstered its conclusion; such assignments would be unnecessary if the

EAJA statute required payment to counsel, not the litigant. Id. at 597-98. In addition, the Court

further concluded that any fee award is subject to offset to satisfy the litigant’s pre-existing debt

to the government. Id.

Under Ratliff, an award may be payable to the attorney where there the client has no outstanding

federal debt and expressly assigned the right to receive fees to their attorney.49

47

28 U.S.C. § 2412(d)(2)(A); Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988);

Richardson v. Byrd, 709 F.2d 1016, 1023 (5th Cir. 1983); Jordan v. U.S. DOJ, 691 F.2d 514,

522-24 (D.C. Cir. 1982). 48

Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009). 49

See, e.g., Mathews-Sheets v. Astrue, 653 F.3d 560, 565-566 (7th Cir. 2011) (interpreting

Ratliffe to suggest, “that if there is an assignment, the only ground for…insisting on making the

award to the plaintiff is that the plaintiff has debts that may be prior to what she owes her

lawyer”); Castaneda v. Astrue, EDCV 09-1850-OP, 2010 WL 2850778 at *3 (C.D. Cal. 2010)

(holding payment of the fee award to the attorney did not violate the holding in Ratliff in light of

the fact that claimant assigned his EAJA recovery to the attorney); Palomares v. Astrue, No. C-

11-4515 EMC, 2012 WL 6599552 at *9 (N.D. Cal. Dec. 18, 2012) (reading Ratliff as

“confim[ing] the common practice that an EAJA fee award is payable to the litigant and not the

24

Attorneys should consult with clients to determine if they owe any debt to the federal

government because that amount will be reduced from any EAJA award. Courts take different

approaches as who is responsible for determining the existence of a debt. Compare Preston v.

Astrue, No. 3:08-CV-991-J-TEM, 2010 WL 3522156 at *2 (M.D. Fla. Sept. 8, 2010) (finding it

was not court’s duty to assess whether the plaintiff owed a debt) with Cowart v. Comm'r of Soc.

Sec., 795 F. Supp. 2d 667, 671 (E.D. Mich. 2011) (ordering the Commissioner of Social Security

to determine whether litigant owed the government a pre-existing debt). See also Palomares v.

Astrue, No. C-11-4515 EMC, 2012 WL 6599552 at *9 (N.D. Cal. Dec. 18, 2012) (holding that

31 U.S.C. § 3716 requires head of an administrative agency to notify debtors of administrative

off-sets).

In some cases, the government has cited to Ratliff to argue that the court must limit any fee

award to the amount the litigant actually “incurred,” or paid counsel, and to justify its request

that counsel provide its retainer. Ratliff, however, does not limit the fee award to the amount

“incurred” by the client, and attorneys should oppose any such argument. The EAJA statute

states that the purpose of EAJA is to address the deterrence that litigants face in “seeking review

of, or defending against, unreasonable governmental action because of the expense involved in

securing the vindication of their rights in civil actions and in administrative proceedings…” Pub.

L. No. 96–481, § 202, 94 Stat. 2321, 2325 (Oct. 21, 1980). Hence, it does not matter how much

the client actually paid counsel; the point of EAJA is to ensure that the client has access to

counsel to defend his or her rights. Practitioners are not required to hand over their retainer

agreements to the government because the amount paid by the client simply is not relevant to the

amount counsel may recover.

Further, because Ratliff establishes that absent an agreement to the contrary, the payment is the

property of the client, counsel should obtain an assignment from the client for any fee award or

settlement. Many courts, however, have found that the individual attorney-client relationship,

the fee agreement, and the purpose and nature of EAJA give rise to an express or implied

obligation for the client to pay to his or her attorney any court-ordered EAJA fee award.50

attorney unless the party does not owe a debt to the government and assigns the right to receive

fees to the attorney”); Williams v. Astrue, No. 0:10-CV-00004-JMC, 2012 WL 6615130 at *3-4

(D.S.C. Dec. 19, 2012) (referencing seven cases in which courts have authorized payments

directly to attorneys where the Defendant does not produce evidence of a debt owed to the

government); Watson v. Astrue, No. CIV.A. 08-950, 2010 WL 2903955 at *1 (W.D. La. July 19,

2010) (ordering the fees be made payable to both counsel and claimant in light of counsel’s

“interest in ensuring her nonstatutory fee rights are satisfied”); Way v. Astrue, No. 1:10-CV-

01134-RBH, 2012 WL 2871643 at *2 (D.S.C. July 12, 2012) (complying with Ratliff by ordering

that the defendant make the check payable to the plaintiff but ordering that the check be mailed

to the attorney, with notice to the plaintiff of the mailing). 50

See Turner v. Comm'r of Soc. Sec., 680 F.3d 721, 725 (6th Cir. 2012) (holding that

“litigants ‘incur’ fees under the EAJA when they have an express or implied legal obligation to

pay over such an award to their legal representatives, regardless of whether the court

subsequently voids the assignment provision under the [Anti-Assignment Act]”) ; Ed. A. Wilson,

Inc. v. GSA, 126 F.3d 1406, 1409 (11th Cir. 1997) (affirming that an EAJA fee award is

appropriate where there is an express or implied agreement that any fee award will be paid to the

25

Post-Ratliff, to ensure counsel receives payment of any EAJA award, attorneys are advised to:

Set forth an assignment of fees to counsel in the retainer agreement. The following is

some suggested language:

In the event of prevailing in the litigation described above, [Client]

authorizes [Counsel] to pursue a motion for attorneys’ fees and expenses

on [Client’s] behalf. [Client] agrees to assign any fee award to

[Counsel/Counsel’s Office]. [Client] agrees to state in a declaration that

any attorneys’ fees payment should be issued to [Counsel/Counsel’s

Office] and mailed to either to [Counsel’s] address or direct deposited into

[Counsel’s] bank account.

If fees and expenses were to issue to [Client], [Client] authorizes

[Counsel] to endorse [Client’s] name to any check, insurance draft, or

settlement draft only for the purpose of depositing said check or draft into

[Counsel’s] account.

With any EAJA motion, submit an affidavit from the client that attests to: (1) the client’s

net worth (see § V.D., supra); (2) assignment of fees; and (3) the absence of a federal

debt. This should avoid the unsettling issue of having the government and court review

retainer agreements. A sample declaration follows this advisory.

In the body of the EAJA motion, ask the Court to order the government to pay any EAJA

award directly to counsel.

Separately establish with the client what portion of the fees remain the property of the

attorney, and what portion are to be returned to the client or applied to future work.

legal representative); Phillips v. GSA, 924 F.2d 1577, 1583 (Fed. Cir. 1991) (“[i]nherent in the

[fee] agreement is an intention on the part of [the plaintiff] to be obligated to her counsel for fees

properly obtainable under that statute.”). See also Arredondo v. Holder, No. 08-73835, slip op.

at 17 (9th Cir. Nov. 30, 2012) (finding litigant’s and attorneys’ declarations sufficient to

establish an implied agreement to pay the fee award direct to counsel).

26

SAMPLE NET WORTH AND FEE ASSIGNMENT DECLARATION

DECLARATION OF [Client]

I, [Name of Declarant], hereby declare and state:

1. My current residence is _____________________.

2. I am a private individual and my net worth does not, nor has it ever, exceeded the

amount of $2,000,000.

3. I make this declaration in support of my motion for attorney fees and costs

incurred in my successful representation before the [Court] in [Case Name and

Number].

4. I previously retained [Counsel] to represent me [if applicable, pro bono] in this

case.

5. I authorize the recovery of fees and expenses to my [attorney, attorneys,

attorney’s office] in order to compensate [him/her/them] for work performed on

my behalf [if applicable, for which their office was not compensated].

6. I further assign payment of any award of fees and costs to [Counsel’s Office]. I

would like the payment to issue to [Counsel’s Office] either via a check mailed to

[Mr./ Ms. /Mrs. ___’s] office address or direct deposited into [his/her] office’s

account.

7. To the best of my knowledge, I do not owe any debt to the United States federal

government.

I declare under penalty of perjury under the laws of the State of ______that the above is true and

correct to the best of my knowledge and belief. Executed on _________, 2014 at [City, State].

_____________________

[Name of Declarant]

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INTRODUCTION

1. This action asks the court to enter declaratory and injunctive relief against Department of

Homeland Security (“DHS”), U.S. Citizenship and Immigration Services (“USCIS”) based on its

improper denial of the Petition for a Nonimmigrant Worker (Form I-129), otherwise known as an

H-1B visa petition, filed by on behalf of their prospective employee

.

2. Founded in , is an enterprise software company with its headquarters located

in , California. On October 2, 2017, filed an H-1B visa petition on behalf of

in order to employ him in the specialty occupation of Technical Analyst (Computer

Systems Analyst). Pursuant to the Immigration and Nationality Act, a United States employer

may sponsor a qualified noncitizen to temporarily “perform services… in a specialty

occupation.” 8 U.S.C. §§ 1101(a)(15)(H)(i)(b); 1184(c). Employers sponsor qualified noncitizens

by submitting Form I-129, an H-1B visa petition, with USCIS.

3. In the position of Technical Analyst, would be employed and paid by

in their , Texas office, and supervised by ’s Vice President of Services. As

part of his job duties, he would be responsible for ensuring smooth implementation of ’s

automation software at the offices of their client, , located in New

Jersey. In support of the initial visa petition and then in response to USCIS’s request for

evidence, submitted substantial documentation, including, inter alia, letters from

, ’s human resource manager, a detailed job description listing all the duties and

responsibilities associated with the position, and evidence of ’s educational

qualifications.

4. On February 1, 2018, USCIS denied ’s H-1B visa petition. The agency found that

had failed to establish that the position of Technical Analyst, which falls within the

standard occupational classification of Computer Systems Analyst, was a specialty occupation,

i.e. one that requires a theoretical and practical application of a body of high specialized

knowledge, and the attainment of a bachelor’s degree or higher in the specific specialty (or

equivalent thereof). In addition, the agency found that had failed to establish that it would

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have a valid employer-employee relationship with because it allegedly had not

shown it would have the right to control his work at .

5. USCIS’s denial of ’s H-1B petition is fundamentally flawed. It ignores critical

evidence in the record, it is replete with factual errors, and it misapplies the applicable law. Such

errors are contrary to the requirements for lawful adjudication under the Administrative

Procedures Act (“APA”) and require remedy by this Court. It is vital that USCIS’s erroneous

determination in this case be rectified not just for and its prospective employee

but also because the issue is fundamental to the proper adjudication of the H-1B

temporary worker visa program, as more than 65% of the H-1B petitions approved during the

2015 and 2016 Fiscal Years were for computer related occupations.1 Left unchecked by judicial

review, USCIS can continue to erratically and erroneously deny such applications, contrary to

governing immigration law and the APA.

JURISDICTION

6. The Court has jurisdiction over the present action pursuant to 8 U.S.C. § 1329,

Immigration and Nationality Act jurisdiction; 28 U.S.C. § 1331, general federal question

jurisdiction; and 5 U.S.C. § 702, the Administrative Procedure Act (“APA”).

7. Plaintiff may seek judicial review upon denial of its visa petition without any further

administrative appeal. See EG Enterprises, Inc. v. Dep't of Homeland Sec., 467 F. Supp. 2d 728,

733 (E.D. Mich. 2006) (exercising jurisdiction upon finding plaintiff was not required to appeal

the denial of its H-1B visa petition to the Administrative Appeals Office prior to filing suit;

noting USCIS concurrence); Young v. Reno, 114 F.3d 879 (9th Cir. 1997) (petitioner was not

required to appeal her visa revocation to the Board of Immigration Appeals prior to seeking

review in district court).

//

//

1 See Department of Homeland Security, “Characteristics of H1-B Specialty Occupation

Workers,” (May 5, 2017) 13 available at

https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/H-1B/h-

1B-FY16.pdf

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VENUE

8. Venue is properly with this Court pursuant to 28 U.S.C. § 1391(e) because this is a civil

action in which the Defendants are employees or officers of the United States, acting in their

official capacity, and an agency of the United States; because a substantial part of the events or

omissions giving rise to the claim occurred in, and Plaintiff is located in and principally conducts

business in, the Northern District of California; and there is no real property involved in this

action.

INTRADISTRICT ASSIGNMENT

9. This action should be assigned to the San Francisco Division because Plaintiff is located

in and principally conducts business in , CA. See Local Rules 3-2(c), (d).

PARTIES

Plaintiff

10. , is an enterprise software company that designs and sells Software-as-a-

Service (“SaaS”) applications for companies with a subscription based business model. ’s

headquarters are located in , CA, with satellite offices throughout North America,

Europe, China, India, Japan, and Australia. On February 1, 2018, USCIS denied ’s Form I-

129 Petition for a Nonimmigrant Worker filed on behalf of beneficiary

.

Defendants

11. Defendant Kathy A. BARAN is the director of the California Service Center. Among

other things, the California Service Center is responsible for adjudicating visa petitions, such as

the H-1B visa petition filed by .

12. L. Francis CISSNA is the Director of U.S. Citizenship and Immigration Services

(“USCIS”). As the Director, Defendant Cissna has been delegated the authority to direct the

administration of USCIS, and to enforce the Immigration and Nationality Act (“INA”) and all

other laws relating to the immigration of non-citizens. Defendant Cissna is responsible for

USCIS’ policies, practices, and procedures, and oversees the USCIS officers responsible for

adjudicating Plaintiff’s H-1B visa petition.

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13. Defendant Kirstjen NIELSEN is the Secretary of the Department of Homeland Security

(“DHS”). DHS is the federal agency encompassing USCIS, which is responsible for the

administration and enforcement of the INA and all other laws relating to the immigration of non-

citizens. In her official capacity as Director, Defendant Nielsen has responsibility for the

administration and enforcement of the immigration and naturalization laws pursuant to section

402 of the Homeland Security Act of 2002, 107 Pub. L. No. 296, 116 Stat. 2135 (Nov. 25, 2002);

see also 8 U.S.C. § 1103(a).

14. All individual Defendants are sued in their official capacities only.

LEGAL BACKROUND

15. A United States employer may file an H-1B visa petition on behalf of a non-citizen

worker. 8 U.S.C. § 1184(c). Regulations define the term “United States employer” to mean “a

person, firm, corporation, contractor, or other association, or organization in the United States

which:

(1) Engages a person to work within the United States;

(2) Has an employer-employee relationship with respect to employees under this part, as

indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of

any such employee; and

(3) Has an Internal Revenue Service Tax identification number.

8 C.F.R. § 214.2(h)(4)(ii).

16. An H-1B nonimmigrant employment visa allows a non-citizen to obtain temporary

admission to the United States to “perform services … in a specialty occupation.” 8 U.S.C.

§1101(a)(15)(H)(i)(b). A specialty occupation requires:

(A) theoretical and practical application of a body of highly specialized knowledge, and

(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent)

as a minimum for entry into the occupation in the United States.

8 U.S.C. § 1184(i)(1). To qualify as a specialty occupation, the position must meet one of the

following criteria:

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(1) A baccalaureate or higher degree or its equivalent is normally the minimum

requirement for entry into the particular position;

(2) The degree requirement is common to the industry in parallel positions among similar

organizations or, in the alternative, an employer may show that its particular position is

so complex or unique that it can be performed only by an individual with a degree;

(3) The employer normally requires a degree or its equivalent for the position; or

(4) The nature of the specific duties are so specialized and complex that knowledge

required to perform the duties is usually associated with the attainment of a baccalaureate

or higher degree.

8 C.F.R. § 214.2(h)(4)(iii)(A).

FACTUAL ALLEGATIONS

17. Plaintiff is an enterprise software company with its headquarters located in

, California and satellite offices throughout North America, Europe, China, India, Japan,

and Australia. See Declaration of in Support of Complaint (“ Dec.”) at 2.

designs and sells Software-as-a-Service (“SaaS”) applications for companies with a

subscription based business model and provides a suite of commerce, billing, and finance

applications that lead the way for businesses to move successfully to the subscription economy.

18. On October 2, 2017, filed a Form I-129 Petition for Nonimmigrant Worker on

behalf of in order to employ , a citizen and national of

India, in the position of Technical Analyst. Dec. at 3. In the position of Technical Analyst,

would be employed and paid by in their , Texas office, and

supervised by ’s Vice President of Services. As part of his job duties, he would be

responsible for ensuring smooth implementation of ’s RevPro automation software at the

offices of their client, , located in New Jersey. Id. See also Dec. Exhibit

(“Exh.”) A (Decision by USCIS) at 3-5 (listing the duties of the proffered position). In support of

its petition, provided a letter describing the position offered and the associated job duties

and responsibilities, among other documents. Dec. at 3. In addition, submitted

evidence establishing that is more than qualified for the position of Technical

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Analyst. Id. For example, submitted a copy of ’s Master of Science degree

in Computer Science from the University of and a copy of his Bachelor of

Technology degree in Computer Science and Engineering from

University in India. Id.

19. On November 3, 2017, USCIS issued a request for evidence (“RFE”). Dec. at 4. In

the RFE, USCIS noted that it found that the beneficiary will perform many of the duties of a

Computer System Analyst, as listed in the Occupational Outlook Handbook (“OOH”). Id.

USCIS found that had not established that the position offered to was a

specialty occupation because it concluded that the OOH indicated that the position of a

Computer System Analyst does not require a bachelor’s level of education as a normal,

minimum for entry into the occupation. Id. In addition, USCIS found the evidence submitted in

the petition insufficient to demonstrate that controls the manner and means of

’s employment at . Id. USCIS invited to provide additional

information to establish the position of Technical Analyst is a specialty occupation and to

demonstrate the existence of a valid employer-employee relationship. Id.

20. In response, filed a cover letter and supporting evidence on January 18, 2018.

Dec. at 5. provided a letter from its Human Resource Manager, confirming that the

minimum educational requirement for the position is a Bachelor of Science degree in Computer

Science, Computer Engineering, or a related field, a detailed job description, showing the duties,

percentage of time for each duty, and specific technical skills required to successful fulfill each

job duty, and various articles noting that a bachelor’s degree in a specific specialty is generally

required for the position of Computer Systems Analyst, in addition to other documents

establishing that a bachelor’s degree is normally the minimum requirement for entry into the

position and common to the industry. Id. In addition, provided various documents,

including an affidavit from the company’s Vice President of Global Services attesting to the fact

that will have sole control over ’s work and directly supervise him

throughout the duration of the H-1B validity, as evidence of pertaining to a valid employer-

employee relationship. Id.

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21. Subsequently, on February 1, 2018, USCIS issued a decision denying ’s H-1B

petition on behalf of . See Dec. Exh. A. The agency found that had

failed to establish that the position of a Technical Analyst was a specialty occupation pursuant to

8 C.F.R. § 214.2(h)(4)(iii)(A). Id. at 5-11. Specifically, USCIS found that, in regard to the

requirements at 8 C.F.R. § 214.2(h)(4)(iii)(A):

• According to its interpretation of the OOH, a bachelor’s degree or higher in a specific

specialty is not normally the minimum required for entry into the occupation of

Computer Systems Analyst;

• has not submitted sufficient documentation to show that the degree

requirement is common to the industry in parallel positions among similar

organizations in finding that the several job postings submitted in the RFE failed to

show that and those employers share similar characteristics;

• The job duties for the proffered position do not establish that the position is more

unique or complex than other similar positions within the same industry;

• It could not determine whether the employer normally requires a degree for the

position after finding that ’s submission of the degrees, transcripts, and

evaluations for the employee who currently holds the job of Technical Analyst did

not include this employee’s job duties and thus USCIS was unable to compare his

duties with the beneficiary’s duties; and

• The record contained insufficient information to establish that the nature of the duties

are so complex and specialized that the knowledge required to perform the duties is

usually associated with the attainment of a bachelor’s degree or higher degree in a

specific specialty.

22. In addition, USCIS found that had not established its right to control when, where,

and how the beneficiary performs the work with their client and thus failed to establish a valid

employer-employee relationship. See Dec. Exh. A at 13-14.

//

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COUNT ONE

Violation of the Administrative Procedures Act

5 U.S.C. § 701, et seq.

23. Plaintiff re-alleges and incorporated herein by reference, as if fully set forth herein, the

allegation in paragraphs 1-22 above.

24. The APA requires this Court to hold unlawful and set aside any agency action that is “(A)

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B)

contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory

jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).

25. Here, Defendants acted arbitrarily, capriciously, and contrary to law in violation of the

Administrative Procedure Act by denying ’s H-1B visa petition on behalf of

. In denying ’s H-1B visa petition, USCIS committed five (5) errors warranting

remedy – it rejected all four alternative possible bases on which the job offered qualifies as a

specialty occupation, even though demonstrated that any one of the four grounds would be

sufficient, and it found a lack of valid employer-employee relationship, improperly describing

as essentially just a job placement company without considering ’s unique software

and services that it provides to its clients. Indeed, such a decision cannot stand in light of

evidence presented before the agency, which, when properly analyzed, was more than sufficient

to establish the existence of a specialty occupation and a valid employer-employee relationship

under the applicable standard of proof, preponderance of the evidence. See Matter of Chawathe,

25 I&N Dec. 369, 375 (AAO 2010).

26. First, USCIS acted arbitrarily and capriciously in finding that the OOH indicates that a

bachelor’s degree or its equivalent in a specific specialty is not normally the minimum required

for entry into the occupation of Computer Systems Analyst. See Dec. Exh. A at 6-7. USCIS

erred in two ways. First, it erred in its interpretation of the definition of “specialty occupation” as

it appears to believe that the definition requires that the job require a bachelor’s degree in a very

specific specialty that precisely matches the occupation. This is not, and has never been, the

correct interpretation of the definition of specialty occupation, since many occupations do not

correspond to (or require) just one particular field of undergraduate study. Second, the OOH

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clearly indicates that at least a Bachelor’s degree in a computer-related field is a common

minimum qualification for this occupation. In the Education section for Computer Systems

Analyst, the OOH states “Most computer systems analysts have a bachelor’s degree in a

computer-related field… For more technically complex jobs, a master’s degree in computer

science may be more appropriate.” See id. USCIS may not arbitrarily apply portions of the OOH.

Proper review of the OOH demonstrates that the position of Computer Systems Analyst qualifies

as a specialty occupation.

27. Second, USCIS did not act in accordance with the law in finding that a degree

requirement is not common to the industry in parallel positions among similar organizations.

Dec. Exh. A at 8-9. USCIS disregarded job postings submitted by establishing that a

bachelor’s degree or its equivalent in a specific specialty is common to the industry in finding

that it was unable to determine whether the job advertisements were from employers who share

similar characteristics with . Id. However, such analysis misapplies the relevant standard,

which focuses on whether a degree is common to the industry, rather than whether and

these organizations share similar characteristics. 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). In addition,

USCIS abused its discretion when it failed to address various articles articulating that a

bachelor’s degree in a specific specialty is generally required for a Computer Systems Analyst

position, thus highlighting how the degree requirement is common to the industry. Such a failure

to properly apply the law and disregarding critical evidence is contrary to the APA.

28. Third, USCIS erred in finding that it could not determine whether normally

requires a degree for the proffered position. Dec. Exh. A at 10-11. In so finding, USCIS

ignored the evidence presented, including a letter from the employer and supporting

documentations establishing that would only hire candidates with a bachelor’s degree in

Computer Science or related field for the position. See Dec. at 5. In addition, ignored

evidence of a bachelor’s degree from a current employee holding the same position because the

submission did not include the job duties and responsibilities of that individual and thus USCIS

found it was unable to compare the position with the beneficiary’s duties. Dec. Exh. A. at 10.

But did submit the job duties for a Technical Analyst position and thus USCIS could have

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AILA Doc. No. 18080375. (Posted 8/3/18)

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compared the positions (both the beneficiary and the current employee fill the same position of

Technical Analyst). Once again, USCIS abused its discretion in failing to consider evidence

submitted in support of the H-1B petition.

29. Fourth, USCIS erred in finding that the record contained insufficient information to

establish the nature of the specific duties were so complex and specialized as to require

knowledge usually associated with the attainment of a bachelor’s degree or higher. Dec. Exh.

A at 11. USCIS failed to consider the evidence submitted, such as letters from the employer and

the duties of the position, in finding that the position did not meet the criteria listed in 8 C.F.R. §

214.2(h)(4)(iii)(A)(4).

30. Fifth (and lastly), USCIS acted arbitrarily and capriciously in finding no valid employer-

employee relationship. Dec. Exh. A at 11-14. In particular, USCIS ignored evidence in the

record, including letters from ’s Human Resource Manager and Vice President of Global

Services attesting that the company would have sole control over ’s work and

directly supervise him throughout the duration of the H-1B validity and ’s contracts with

showing it was not a contract for hire, but rather for software sales. Such a

failure to analyze critical, on point evidence, cannot stand.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff pray that this Court grant the following relief:

(1) Accept jurisdiction over this action;

(2) Reverse the USCIS decision and grant Plaintiff's I-129 petition on behalf of

;

(3) Grant reasonable attorneys' fees and costs as provided under the Equal Access to

Justice Act and the APA;

(4) Grant such further relief as the Court deems just and proper.

Dated: March 6, 2018 Respectfully submitted,

Attorneys for Plaintiff

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AILA Doc. No. 18080375. (Posted 8/3/18)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Plaintiffs,

v.

Janet NAPOLITANO

Secretary,

Dept. of Homeland Security

and

Alejandro MAYORKAS

Director, U.S. Citizenship and

Immigration Services

and

Rosemary Langley MELVILLE,

Director of the California Service Center

of USCIS

and

Robert P. WIEMANN, Director, USCIS

Administrative Appeals Office,

in their official capacities,

Defendants.

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COMPLAINT

Plaintiffs , by

and through their undersigned attorneys, file this Complaint, hereby stating and alleging the

following:

NATURE OF THE ACTION

1. This is a civil action brought by a non-profit religious organization to challenge

the decision of the United States Citizenship and Immigration Services (“USCIS”), Department

of Homeland Security, to deny a Special Immigrant Religious Minister Petition (or “Form

I-360”) filed on behalf of one of its ministers. Religious organization petitioners file Form I-360

as the first step in obtaining lawful permanent resident status on behalf of a minister. Such a

petition requires the petitioner to establish, inter alia, that the beneficiary has been “carrying on

… continuously” the vocation of religious minister for the two year period immediately

preceding the filing of the immigrant petition. 8 U.S.C. § 1101(a)(27)(C)(iii). The sole basis

stated in the defendant’s denial of the petition was the failure of to satisfy

8 C.F.R. § 204.5(m)(4), a regulation implementing 8 U.S.C. § 1101(a)(27)(C)(iii), which adds a

nonstatutory requirement that the beneficiary of an I-360 petition have worked for a two year

period immediately preceding the filing of the petition either abroad, or in lawful immigration

status in the U.S., precluding the Church from taking the initial necessary step to legalize the

status of a minister, such as Pastor , who has carried on his vocation after expiration of

his lawful immigration status.

2. The Secretary of the Department of Homeland Security is charged with the

promulgation of regulations ancillary to the Immigration and Nationality Act (“INA”), including

8 C.F.R. § 204.5(m). In the visa context, such regulations generally describe the process for the

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filing of petitions and the nature of evidence that USCIS seeks when making a determination as

to whether an alien qualifies as being statutorily eligible for an immigrant or nonimmigrant visa.

For example, in the context of obtaining immigrant visas for aliens with extraordinary ability,

DHS has issued regulations requiring that such ability be evidenced by receipt of a major

international award or by submitting sufficient evidence from at least three out of 10 enumerated

categories. See 8 C.F.R. § 204.5(h)(3) (expounding on statutory requirements for immigrant visa

under 8 U.S.C. § 1153(b)(1)(A)). These regulations supplement the ambiguous statutory gap

found at 8 U.S.C. § 1153(b)(1) by providing that, unlike most employment-based visas,

qualifying extraordinary aliens do not need a petitioning employer. See 8 C.F.R. § 204.5(h)(5).

DHS has provided similar regulations relating to the evidence necessary to demonstrate statutory

eligibility for virtually every type of visa under the INA. Such proper regulations fulfill the

permissible rulemaking purpose of clarifying statutory gaps and providing administrative

procedure as opposed to imposing novel, arbitrary requirements unfounded in the statutory text.

3. Employment-based immigration is a two-step process under the INA. It must first

be established that an alien is eligible for a visa and then afterwards the alien must make separate

application for adjustment once that visa is available. See Matter of Rajah, 25 I. & N. Dec. 127

(BIA 2009) (“If the USCIS approves the [visa petition] and a visa is immediately available, the

alien may apply for adjustment of status under section 245(a) of the Act” by filing a Form I-485).

4. Congress has unambiguously provided for the important government interest of

preventing aliens who have broken material immigration and criminal laws from obtaining visas

by directing federal agencies to classify such aliens as inadmissible independent of the inquiry as

to whether such aliens can make a prima facie showing that they meet the statutory qualifications

for a visa. See 8 U.S.C. § 1182 (excludable aliens). With regard to unauthorized employment,

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Congress has explicitly framed such violations as affecting the ability to adjust status. An alien

who was employed without authorization, overstayed his nonimmigrant visa, or has otherwise

violated the terms of a nonimmigrant visa, cannot obtain permanent residency by adjustment of

status in the United States. 8 U.S.C. §§ 1255(c)(2) and 8 U.S.C. §§ 1255(c)(8). These bars to

adjustment can be subject to statutory exceptions, such as the provision allowing an

employment-based immigrant such as Pastor to adjust status so long as any violation of

status or unauthorized employment does not exceed 180 days since his last entry. See 8 U.S.C. §

1255(k).

5. Accordingly, the twin issues as to whether an alien is statutory eligible for a visa

and whether he may adjust status are discrete and separate inquiries under the INA. Incidents of

unlawful employment or unlawful presence operate under the statutory text only in the

adjustment of status context and not in the preliminary visa adjudication step.

6. With regard to the I-360 petition filed on behalf of an immigrant minister,

Plaintiffs contend the requirement under 8 C.F.R. § 204.5(m) that every day of a beneficiary’s

qualifying employment be working in lawful U.S. status or abroad is an ultra vires application of

the INA and otherwise in violation of the Constitution and laws of the United States. Specifically

and manifestly contrary to the plain language and organization of the INA, the offending

provisions of 8 C.F.R. § 204.5(m) impermissibly adopt as a prerequisite for visa issuance what

Congress has unambiguously delegated to the adjustment inquiry. Thus, DHS has enacted a

regulation that is arbitrary, capricious, and imposes an ultra vires prerequisite to the issuance of a

religious worker special immigrant visa. This regulation also offends the Equal Protection, Due

Process, and Free Exercise Clauses of the Constitution of the United States and violates the

Religious Freedom Restoration Act.

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7. As a result of USCIS’s application of this ultra vires regulation to Plaintiffs’

petition, they were denied benefits they would otherwise receive pursuant to the INA.

PARTIES

8. Plaintiff is a Christian church

affiliated with the Convention of Assemblies of God of Brazil (“CONAMAD” from Convenção

das Assembleias de Deus no Brasil), a Pentecostal Christian organization. On

, the Church organized under the laws of the State of New Jersey as a non-profit

corporation. The Church is accorded federal tax-exempt status under § 501(c)(3) of the Internal

Revenue Code.

9. Plaintiff, , is a citizen of Brazil. He is an ordained

CONAMAD minister and has served as a Senior Pastor with the Church continuously for well

over 10 years.

10. Defendant Janet Napolitano, is Secretary of the United States Department of

Homeland Security (“DHS”) and is authorized to promulgate and administer regulations under

the Immigration and Nationality Act. This suit is brought against Ms. Napolitano in her official

capacity as Secretary of the Department of Homeland Security.

11. Defendant, Alejandro Mayorkas, is the Director of United States Citizenship and

Immigration Services (“USCIS”), the agency charged with, inter alia, the adjudication of

applications and petitions for benefits provided under the INA, including immigrant petitions

such as the Form I-360 filed by the Church on behalf of Pastor Alencar. This suit is brought

against Mr. Mayorkas in his official capacity.

12. Rosemary Langley Melville is the Director of the California Service Center of

USCIS, the Service Center charged with adjudication of I-360 Petitions for Amerasian,

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Widow(er), or Special Immigrant beneficiaries. This suit is brought against Ms. Melville in her

official capacity.

13. Robert P. Wiemann is the Director, USCIS Administrative Appeals Office,

charged with adjudication of appeals resulting from the denial of I-360 petitions. This suit is

brought against Mr. Wiemann in his official capacity.

JURISDICTON AND VENUE

14. This Court has federal question subject matter jurisdiction of this action under

28 U.S.C. § 1331 because Plaintiffs’ claims arise under INA § 203(b)(4) (8 U.S.C. §1153 (b)(4)),

its applicable regulations at 8 C.F.R. § 204.5, the Constitution of the United States, and the

Religious Freedom Restoration Act (42 U.S.C. § 2000bb et. seq.). This Court may grant relief in

this action under 28 U.S.C. § 1651 (All Writs Act); 28 U.S.C. §2201 (Declaratory Judgment Act);

and under 5 U.S.C. §701 et seq. (Administrative Procedures Act).

15. Plaintiff is without administrative relief. This action challenges the Defendants’

regulations, procedural policies, practices, and interpretations of law, not the discretionary

granting or denial of individual petitions or applications. Therefore, the jurisdictional limitations

of 5 U.S.C. § 701(a)(2) and 8 U.S.C. § 1252 are not applicable. Under the terms of Immigration

and Nationality Act, 8 U.S.C. §1153(b)(4), the decision on the immigrant petition for which

declaratory judgment review is sought is not a discretionary decision.

16. Venue is proper in this Court under 28 U.S.C. §1391(e) because this is a civil

action in which the Defendants are officers of the United States acting in their official capacities

and because USCIS is an agency of the United States. A substantial part of the events giving rise

to these claims occurred in the State of New Jersey and both Plaintiffs reside in New Jersey.

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Statutory and Regulatory Background

17. The INA governs the conferral of immigration and naturalization benefits on

aliens and their respective petitioners. Aliens coming to the United States to perform religious

work have several avenues for obtaining visas depending on whether they will be performing

such work on a temporary (nonimmigrant) or permanent (immigrant) basis.

18. Nonimmigrant aliens coming to the United States to work for a bona fide

nonprofit religious organization generally do so by obtaining an R-1 visa. As a prerequisite for

obtaining an R-1 visa, the alien must, for the two years immediately preceding the time of

application for admission, have been a member of a religious denomination having a bona fide

nonprofit, religious organization in the United States. The alien must also seek to enter the

United States to perform work as a minister for that particular denomination, in a professional

capacity at the request for that denomination, or at the request of the religious organization at the

in a religious vocation or occupation. Like all nonimmigrant visas, an R-1 is limited to a definite

duration, specifically with a maximum stay of five years. 8 U.S.C. § 1101(a)(15)(R)(ii); 8 C.F.R.

§ 214.2(r)(4)-(6).

19. Although not codified in the Immigration and Nationality Act, nonimmigrant

aliens may also perform religious functions in certain circumstances on a visitor’s visa. For

example, alien religious ministers are permitted to temporarily “exchange pulpits” with their

U.S. counterparts on a B-1 visitor for business visa. See U.S. Department of State Foreign

Affairs Manual (“FAM”), 9 FAM 41.31 N9.1-2. Other permissible religious activities for

remuneration on a B-1 visa include participating in an evangelical tour (9 FAM 41.31 N9.1-1) or

engaging in missionary work (9 FAM 41.31 N9.1-3). The B-1 can even be used for those

ordained ministers who do not qualify for an R visa. 9 FAM 41.31 N9.1-4. Aliens on a B-1 or

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2 visa that to engage in voluntary religious service activities are free to do so. See 9 FAM 41.31

N9.1-5.

20. The option for obtaining an immigrant visa for the purposes of performing

religious work is much more limited. The INA provides a specific immigrant visa category for

religious ministers and other religious workers as “Special Immigrants.” 8 U.S.C. §1153(b)(4).

The process for obtaining a special immigrant religious worker visa is set in motion when a

religious organization employer files a Form I-360.

21. Under the plain language of 8 U.S.C. §1153(b)(4) “visas shall be made available

... to qualified special immigrants” as that term is defined in 8 U.S.C. § 1101(a)(27). (emphasis

added). “Special immigrant” religious ministers are defined and qualified as:

(C) an immigrant, and the immigrant’s spouse and children if accompanying or

following to join the immigrant, who—

(i) for at least 2 years immediately preceding the time of application for

admission, has been a member of a religious denomination having a bona

fide nonprofit, religious organization in the United States;

(ii) seeks to enter the United States—

(I) solely for the purpose of carrying on the vocation of a minister

of that religious denomination […]

(iii) has been carrying on such vocation, professional work, or other work

continuously for at least the 2-year period described in clause (i).

INA § (101)(a)(27)(C) (“Religious Workers”).

22. DHS has promulgated regulations implementing the petition process for Religious

Worker immigrants at 8 C.F.R. §§204.5(m)(1) – (4) (2011). These regulations, first published in

1991, comported with the requirement under the INA that prospective alien religious worker

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immigrants must have been a member of a religious denomination which has a bona fide

nonprofit religious organization in the United States. 1

23. On April 25, 2007, DHS proposed an amendment to 8 C.F.R. § 204.5(m) by

adding additional, nonstatutory qualifications with respect to the beneficiary in order to receive

an immigrant visa. Among other edits, DHS proposed to “clari[fy] that qualifying prior

experience (that is, during the two years immediately preceding the petition or preceding any

acceptable interruption of religious work) acquired in the United States must have been

authorized under United States immigration law[.]” 72 FR 20447. This additional qualification

proposed to be added to 8 C.F.R. § 204.5(m) was not substantiated by a cross-reference to the

INA authorizing DHS to determine the viability of I-360 petitions based on the authorization of

the alien’s underlying qualifying employment.

24. On November 26, 2008, DHS finalized the amendments to 8 C.F.R. § 204.5(m).

That section now contains the requirement that a prospective religious worker beneficiary 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, and after the age of 14 years continuously for at least the two-year

period immediately preceding the filing of the petition. The prior religious work

need not correspond precisely to the type of work to be performed […]

8 C.F.R. § 204.5(m)(4) (emphasis added). See also 8 C.F.R. § 204.5(m)(11), which

requires petitioners to submit evidence in cases where the beneficiary has been working

in the United States to be “authorized under United States immigration law.”

1 See 56 FR 60905. ( “(m) Religious workers – (1) An alien, or any person in behalf of the alien, may file an I-360

visa petition for classification under section 203(b)(4) of the Act as a section 101(a)(27)(C) special immigrant

religious worker. Such a petition may be filed by or for an alien, who (either abroad or in the United States) for at

least the two years immediately preceding the filing of the petition has been a member of a religious denomination

which has a bona fide nonprofit religious organization in the United States […] [R]eligious workers must have been

performing the vocation, professional work, or other work continuously (either abroad or in the United States) for at

least the two-year period immediately preceding the filing of the petition.”)

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25. In implementing 8 C.F.R. § 204.5(m), DHS did not address whether there was any

public commentary specifically aimed at the new restriction on that a beneficiary’s qualifying

two-year employment must be either abroad or in lawful immigration status in the United States.

See 73 FR 72279-85.

STATEMENT OF FACTS

26. On or about , a citizen of Brazil, was inspected and

admitted into the United States on a B-2 nonimmigrant visitor’s visa with his wife and two

children. The family was granted authorized stay until .

27. While on his B-2 visa, Pastor did not obtain employment authorization.

28. The family has not departed the United States since their admission.

29. In 1998, after meeting all applicable educational prerequisites, Pastor was

ordained as a Pastor of the faith by .

30. Since 1998, Pastor has served as a religious minister for within the

Pentecostal faith and the organization. His job duties during this time have included

preparing for services, leading Bible studies, conducting religious services, performing Christian

rites, teaching Sunday school, instructing prospective converts, meeting with sick parishioners,

providing counseling, and administrative duties.

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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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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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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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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Respectfully Submitted,

Dated: ____________

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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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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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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

Camphill Soletane v. U.S., 381 F.3d 143 (3d Cir. 2004) .............................................................. 13

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................... 6

Chevron U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 (1984) ...... 2, 7, 8, 10

Flath v. Garrison Pub. Sch. Dist., 82 F.3d 244 (8th Cir. 1996) ..................................................... 7

Gulen v. Chertoff, No. 07-2148, 2008 U.S. Dist. LEXIS 54607, (E.D. Pa. Jul. 16 2008) ........... 13

Jaramillo v. INS, 1 F.3d 1149 (11th Cir. 1993) ............................................................................ 12

Matter of O--, 8 I. & N. Dec. 295 (1959)........................................................................................ 9

McGrath v. Kristensen, 340 U.S. 162 (U.S. 1950) ................................................................. 12, 13

Nken v. Holder, 556 U.S. 418 (U.S. 2009) ..................................................................................... 9

Orsatti v. New Jersey State Police, 71 F.3d 480 (3d Cir. 1995) ..................................................... 6

Prometheus Radio Project v. FCC, 652 F.3d 431 (3d Cir. 2011) ................................................. 11

Rosendo-Ramirez v. INS, 32 F.3d 1085 (7th Cir. 1994) ............................................................... 12

Sanchez-Trujillo v. INS, 632 F. Supp. 1546, (W.D.N.C. 1986) .................................................... 13

SEC v. Chenery Corp., 332 U.S. 194 (1947) ............................................................................ 7, 13

Shia Ass’n of Bay Area v. U.S., 849 F. Supp. 2d 916 (N.D. Cal. 2012) ................................. 10, 11

Statutes

5 U.S.C. § 706 ............................................................................................................................... 11

INA § 101(a)(27)(C) .............................................................................................................. passim

INA § 203(b) ............................................................................................................................. 9, 10

INA § 212 ....................................................................................................................................... 9

INA § 212(a) ................................................................................................................................... 9

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INA § 242(b) ................................................................................................................................. 13

INA § 245 ................................................................................................................................. 9, 10

INA § 245(k) ............................................................................................................................. 9, 10

Regulations

8 C.F.R. § 204.5(m) ............................................................................................................... passim

8 C.F.R. § 204.5(m) (Jan 1, 2008) ................................................................................................ 12

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

: 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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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

following attorney of record:

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