2020 AILA Conference: Day 3, Session 5: Win A Mandamus or APA Lawsuit

[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 them 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 attributed to the AILA organization as a whole, nor can they be attributed to the speakers themselves. These are what I took out of the video and what I’m sharing, what I thought they said. 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’s a lot of good topics here, and I can’t wait to get started.

[0:54] Alright, here we are, day three, session five: Litigating in the New Age of Deference. Now, another title could be “How to Win a Mandamus or APA Lawsuit against USCIS.” This is a great video that directly follows the previous litigation videos that we made because it directly tackles the deference issue that we didn’t discuss. And who better to present these topics than these speakers over here [Megan Brewer, Jennifer L. Koh, Robert Pauw, Jonathan Wasden]? AILA authors, speakers, thinkers, some of the best in the industry. I can’t wait to dive into it with you. Let’s get started.

[1:22] Now, as a quick background, when you’re suing the government or suing USCIS because your case got denied or delayed, you’re using mandamus or APA as grounds. And the government has great latitude of discretion when they adjudicate these cases. They can’t just be sued left and right by everybody who has an unfavorable outcome.

In this video, we’re going to dive in to show how their discretion has been abused and that’s why the decision is null and void. Now, this is not just creative lawyering. It’s based on the Supreme Court ruling in June 2019, Kisor v. Wilkie. Now, it is a very tight case. It’s five justices versus four justices, and it essentially overturns the previous deference principle. Now, I said essentially because it didn’t effectively overturn the deference principle, it just created five additional elements that when you are suing the government on abuse of discretion, you really need to look at these five elements. 

And the public policy on both sides is quite clear. You cannot give unlimited power to different agencies to decide whatever they want and change whatever Congress decided and implement however they want.

On the other hand, each agency should have their own discretion in how to implement rules, to try to catch fraud, to try to make things more efficient. So what exactly is the boundary? In this new case, they essentially created five elements or factors that the judge should really consider when they are deciding if an agency really abused their discretion so that they should change their decision. Now, what does that mean to us? Well, if USCIS has been continuously denying cases and we think that they are abusing this discretion based on these five elements, we can directly take it and sue USCIS and say, “Hey, look at all these elements. You’re clearly not executing the law according to how Congress intended. You’re making up your own rules, and your decision doesn’t even make sense. Therefore, we should toss it out and you should approve our case.” All right, let’s get started.

[3:16] The first one is genuine ambiguity. If Congress intended your agency to have a wide latitude of discretion, they will purposely leave it ambiguous. They would not make it super clear. They would not put all these examples. They would not make their thoughts clearly known. Now, if any of you have ever read law, something that’s super simple could be like 50 pages. The first 10 pages could just be definitions upon definitions, examples of definitions, and when definitions will go into play in reference to other laws with their definitions, and it could go on and on just for a very simple thing. Meaning, it is very rare for Congress to leave anything genuinely ambiguous.

Now, there are certain things that can have some ambiguity, but that’s just those limited things. And we know as immigration practitioners, when you’re applying for visas and over the years, things are constantly being decided and determined and interpreted by USCIS. In one year, they would approve the case based on their extraordinary ability. In another year, they will revoke it, saying, “Nah, we changed our mind.” That is kind of unacceptable. And yes, we understand the agency is not bound by their prior decisions, but the point is if the law is clear, why are you changing your mind so much? And so, your proof number one when you sue the government is to say the law is super clear, we abide by that law, we presented all these documents, and USCIS has used their own interpretation against what the law is saying and denied our case.

[4:48] The second point is reasonable construction. Assuming the law is ambiguous, or let’s grant that USCIS or the government does have a wide latitude in interpreting this particular section of the law, is your interpretation reasonable? Or, another way to put it, is your interpretation so restrictive that it actually cancels out the visa itself? Or is it so restrictive that it goes against the very nature and spirit of the law?

Let’s take L1A, the executive managers, for example. Most denials are because they don’t consider the applicant to be a high-level enough executive or manager. They must have 50 people underneath them. The company must have 20 billion dollars in assets. They might have 20 million dollars in revenue or something along those lines. If USCIS takes that super restrictive definition of a manager or executive so that you have to be these leading executives from the biggest international companies, then that obviously restricts the definition of a manager. If you are a manager at a local McDonald’s, you are still a manager. What was Congress’s intent of a manager? There are super low managers and there are super high managers. So under what circumstance is that interpretation correct?

I won an L1A appeal case based on this reasonable construction. The government argued that the L1A did not qualify because the office was too small. It was only a hundred square feet. But we argued that it was an e-commerce website and they had huge inventory and they had tons of workers working all over the world, and they don’t need a physical big office. And it was not reasonable for them to deny a case just purely based on the square footage of an office. So now the courts are able to look at how these agencies are executing these “ambiguous” regulations to see if they are actually reasonable. And if they are not reasonable, and if you can prove your case, then those cases can get reversed. They can’t be saved. You do it.

[6:41] The next issue is authority. Generally speaking, USCIS does have the authority. When you file an application with them, it’s their responsibility to adjudicate and interpret the laws. 

But where this may play out is if you already filed all the applications and then you’re facing this local officer from this particular chapter and then they are deciding things that’s way above their pay grade. For example, if you already passed through the incredibly long and arduous process of getting a citizenship, you took the test, you passed the oath but for whatever reason this local officer will not issue you your certificate based on some bogus reason, well they’re definitely pulling above their weight and you can sue that officer saying “Hey, you don’t have the authority to do that.”

[7:19] Number four, and this is a big one. Substantive expertise. If the agency is issuing decisions that is not in their area of expertise or based on their incompetency, they shouldn’t be making decisions like these, then you can definitely challenge their decision. And this is huge because the immigration agency touchase every aspect of life of international law of every law in the country. It is insanely complex. For example, we touch on this on the specific immigrant juvenile video we talked about earlier and basically, the government, USIS, is going back and challenging original decisions by the family court on whether or not a kid is actually abandoned, neglected, or abused. These family court judges specialize in dealing with kids with trauma. It is their expertise and here you have a USCIS officer, thousands of miles away in a little crappy room adjudicating this case without having to interview the kid or the witnesses. And they are directly saying “Hey Judge, you made this determination about abuse and neglect, but we think you’re wrong.” And that determination is ripe for challenging it in court because they do not have the substantial expertise to adjudicate these cases. This level of expertise really belongs in the individual courts in the specific county in that specific state.

[8:36] Another example is asylum law. These USCIS officers and these immigration judges are reviewing these cases, but they do not have training in international humanitarian law and trafficking and the disaster that these individuals are facing in foreign countries. So if your asylum application gets denied because the USCIS officer essentially writes “I don’t think you’re really persecuted. I don’t think you’ll really be harmed if you go back to your country. You can go back. I think you’ll be just fine.” You can totally appeal that in court now by saying “How do you know?” and the list goes on and on and on.

How does a USCIS officer know constitutional law about religious rights for R-1 and EB-1 applications? How does the USCIS officer really understand the complexity of an international merger and stocks exchange going off on Hong Kong, Shenzhen, every area of the world? How does a US officer know the birth certificate regulation regarding China before the communist party took into effect and before there was an empire? It’s just super complex.

[9:34] And so on one hand, they do not have the expertise regards to all of these areas and it is your burden as the applicant to provide them all the documentation. And so if they deny your case based on all this indisputable documentation then you have a right to challenge them, but on the other hand, USCIS does deal with the whole world’s immigration applications to the US so they do have international expertise and they do have resources from other agencies and so if they are able to find something that’s able to contradict you, then they, of course, have the deference. This goes back to it’s your burden of proof as the application, as the lawyer representing your clients, to furnish an indisputable case you can win with USCIS and with the courts.

[10:18] Number five: No surprises. I love this one because depending on the administration, a Republican, a Democrat, somebody who’s pro-immigration, somebody who’s against immigration, somebody who’s a nationalist, somebody who’s a globalist, depending on the vision of the top dog, USICS as an organization seem to be changing year in and year out. In year one, this is okay. In year two, this is not okay. And now, based on this new rule, you cannot have surprises if you’re going to change your policy. You better release a memo and it better be well-reasoned and sound.

One of the best examples of this is the lawsuit between Harvard and MIT, against the Department of State and ICE, right? We made a video Harry Potter-style over here. You would do well to check it out. But basically, this is the exact argument they made. You cannot give us a surprise. You originally made a determination in March saying International students don’t have to be physically in class. They can just do online classes, and then suddenly in July, you reverse that decision and say no, now they do have to go to online classes… Sorry. That’s a huge surprise. You cannot do that.

[11:20] And those are the five ways you can challenge an agency determination if you’re seeing the government if you’re seeing USCIS continuously deny cases, or just deny your case based on some bogus reason that you really find unsatisfying. You can now take this and use this precedent, a supreme court ruling, and challenge it in federal court. And I wish you the best. 

Please let me know your results. I would love to know about it. Thank you. Take care. Bye-bye.

[11:47] 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 going to hear the big leaders and what they have to say. And then after this series is done, the AILA conference, I’m going through and teach immigration law and go through every single nuance that you would, 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.