2020 AILA Conference: Day 3, Session 4: Two Ways To Sue USCIS

[Tsang Intro Splash]

Alright, we are here at day three of AILA’s 2020 conference. This is the first time AILA University is providing these conferences virtually online. I’m watching these videos and then I’m taking the things that I found most helpful and sharing with you. Now, as a quick disclaimer, these are my opinions, even though I am an AILA member. The opinions expressed in this video cannot be contributed to AILA organization as a whole, nor can they even be contributed to the speakers themselves. These are what I took out of the video and what I’m sharing, what I thought they say. You can totally download the entire video and watch it from AILA University yourself, and you can fact-check what I’m saying.

[0:37] Now, today’s track is all related to removal proceedings and litigation. It is the hottest trend in immigration right now because the [Trump] administration has been strongly opposed to anything immigration-related. So, the only way to challenge it is through the courts. There are a lot of good topics here, and I can’t wait to get started.

Hi everyone, welcome to day three, session four: “Successfully Challenging USCIS in Federal Court.” This was a really good video. AILA University has invited some of the top litigators against USCIS. You can see them here [Bob White, Magaly R. Cheng, Catherine L. Haight, Linda Rose], and they did a great job in breaking it down.

[1:08] Now, before we go in-depth and talk about how to sue USCIS and how to win for your client, it is very important to note that it has been done. It has been successfully done, and it has been wildly successful in being done in recent years. Now, this doesn’t mean that USCIS is bad or that we are good or that AILA is right. It’s just this is the situation. There’s the executive branch, there’s Congress, there are changing adjudicators, there are new adjudicators, there are new policies that have been put in place, and there’s oversize and there’s overwork. And this has resulted in cases that are unjustly denied, and the only way to resolve them is through the courts where the judicial branch comes in and takes a look at it and then being able to send it back to USCIS to get it readjudicated. But the amazing thing is that it works, and it’s possible to sue the government and win if you have a good enough argument, a sympathetic enough fact pattern. You take this and you put this before a judge, a third branch of the government, is willing to step in and help right your wrong. It is an amazing thing that we have. Let’s figure out how to do this right.

[2:15] There are two ways to sue the government over your case. Now, there are other ones, but these were the two that were heavily focused on in this presentation. So, we’re going to dive into them.

The first one is a mandamus. The government hasn’t been acting in their capacity. They are not doing what they are supposed to do, and so, therefore, you are bringing this to the attention of the courts. Basically, it’s like telling on them. These agencies are created to execute and enforce the laws that were created by Congress, and it is the judiciary, the judicial branch, the courts, the judges’ responsibility to make sure that they are doing what they were supposed to do. It’s like telling their boss. If your case got denied or your case is unreasonably delayed, normally it takes six months to process a case, it’s been over six years. Well, something went wrong. Something went wrong in the agency. They’re not doing something correctly, and they are stalling your case, and they are not fulfilling their function. So, you are telling the judicial branch, “Hey, look at what your sister branch or brother branch is doing. They’re not doing their job. You need to tell them that they need to adjudicate the case. You need to tell them that they got the decision wrong. They need to approve the case instead.”

[3:24] Now, you will only be doing this if you really have a strong case because it is up to the discretion of the executive branch. It is up to the discretion of that particular officer to adjudicate your case. The judge is not going to step in and correct their reasoning unless it is extremely unjustifiable. If it can be shown that it is completely blatantly wrong, that any reasonable person pretty much would disagree with this particular officer’s decision, that they’re abusing their power, that it is completely arbitrary and it’s practically insane or just straight up dumb, well then they are also not doing their job in executing the law, and so the judge can step in and say, “Hey, you need to take a look at this case and you need to redo it.”

[4:06] The second way to sue the government is under the APA, the Administrative Procedure Act. When you sue the government under the APA, basically you’re telling the judge to set aside the decision of the agency because it is completely arbitrary, it’s capricious, it is not in accordance with the law, it’s straight up bad. We saw a great example of this when Harvard and MIT sued the Department of Homeland Security and ICE over their decision to make international students take physical classes as opposed to online classes given the situation of a pandemic. Shameless plug, I made a video about this particular case comparing Harry Potter’s Hogwarts versus the Ministry of Magic. It was super fun, super interesting. You got to see Harvard and MIT’s lawyering skills as well as the response by the Ministry of Magic or the Department of Homeland Security and ICE. It was really good, in my opinion. And if you guys want to watch it, go ahead and check it out. Thank you.

[4:56] Now that you have the basis to sue the government, there are also other elements that you need to prove, as well as what the government will do in response to that. The video went in depth and talked about a lot of the requirements. You can check it out on AILA University, you could download it. But we are going to focus on what happens after all of that because what we see oftentimes is that after filing the lawsuit, the lawsuit will now… won’t go to the officer’s desk like a motion to reopen or motion to reconsider; they will get that and they will directly go to the legal department, or they will directly go to the director. And what happens when it lands there, they’re going to say, “Get this off my desk.” 

Before, to the director, you were just a case statistic, you were just a work report from an officer. But now they have to face a judge and answer why did they make this determination. And if you have a good case, they will not want to see you in court, they will not want to face the judge, then see their boss. It’s terrible. It’s not even their fault. It could be that particular officer who adjudicated the case originally, or it could have been an agency-wide decision issued from on top. It’s not their responsibility. They’re just complying with the memos. And so, just to prove the case, just get it off the desk. The point being, don’t be afraid to file these suits in district court. The entire AILA community is here to support you. There are tons of sample attorney briefs that will be issued to you if you need. There are tons of mentors that are willing to guide you. If you haven’t subscribed to AILA Link, shameless plug to AILA Link, you can search it up, and there are tons of samples there as well. It is just a good resource.

[6:21] This is the new way forward. This is the new normal. This is how America improves. Agencies make determinations based on what they believe is best, and it gets challenged in the courts to see if this is really the best way to interpret the laws. And it goes back to Congress, and if you want to change the laws, then Congress will change the laws. But you, as the attorney, you, as the client, you guys are the front lines. The denial is in your hands. What you do with it determines the future of this country. If you don’t bring suit, then nobody else will. And the amazing thing, again, is we have that opportunity. We can do that, and we have done that, and we have been very, very successful at doing that. So please have courage, have faith, and have a great rest of the conference. Take care. Bye-bye.

[7:07] Besides this video, we’re also very active on Instagram, Facebook, LinkedIn, and we’re trying to put out content that’s appropriate to those mediums. Now, if you like this video, you might like some of the things that we’re posting on there as well. Feel free to engage with us there. Now, after today’s session, we’re also doing one more session tomorrow, and it’s a really big session because we’re gonna hear the big leaders and what they have to say. And then after this series is done, the AILA conference, I’m gonna go through and teach immigration law and go through every single nuance that you might want to learn. So if you like this kind of stuff, feel free to like and subscribe below. I’d love to engage with you. 

Thank you. Bye-bye.