2021 AILA Conference: Day 1, Session 1: Myths About Litigating Your First Case

That was the first session of AILA’s 2021 conference?! This is going to be a great conference, just judging by this first session I attended.

Hi everyone. This is Joseph. I’m here at AILA’s 2021 virtual conference. What I’m doing is I’m watching these conferences live and I’m sharing the key insights that I’m getting out of it. There are so many good content that AILA every single year invites some of the best attorneys to share on these subjects. And this session was no different. It was so good. Can’t wait to share them with you. Let’s get started.

[0:33] With a title like “Litigating Your First Case: You Can Do It!,” you might expect this to be like a fundamental course, the nuts, and bolts of litigation, but it totally isn’t. They have star attorneys teaching on this subject. Isn’t that amazing? Ira Kurzban himself and all the other panelists are joining to teach this basic course on the first day of the AILA event. Now there are a lot of funny things that happened. I can’t wait to share them with you.

[0:58] So the key thing that they’re emphasizing is to not be afraid and to bring a case to immigration court. Jesse, the AILA Director of Federal Immigration, is telling everyone that he used to be on the other side, and now he’s switching sides. He’s saying that when attorneys, immigration attorneys, AILA attorneys bring a suit to court, usually it’s like, “Oh, what did the government do wrong again? It must have a really good case, or else they wouldn’t bring suit.” So more often than not, cases get approved because you bring a lawsuit. So do it! Right? And so him switching sides and encouraging people to do it, it’s a big deal, and this is a relatively new chapter that’s growing. In the past few years, this has been on a rising trend. It probably started with the whole H1B fiasco, but it definitely expands to other areas, and there are a lot of reasons for this. And the resources AILA is providing is helping all the attorneys prepare their cases to win is enormous, right? Of course, everybody’s saying, “Just buy the book by Kurzban.” That’s one thing, but also on AILA Link, also on AILA University, and just other immigration attorneys that do litigation, we love sharing our memos, we love sharing our attorney briefs with other attorneys because, we’ll it rubs our ego for one, but second, it’s because we’re all in it together. We know the system is broken in a lot of different ways, and it’s not necessarily USCIS’ fault. They have been just overwhelmed with a bunch of different things, and it’s a big agency, and they have a lot of priorities, and some things get missed. One of the only ways to address the problem is through litigation. It’s just part of the solution, so don’t be afraid to do it.

[2:40] And now, the panelists presented a lot of different solutions and combatted a bunch of different myths, right? A lot of people have these misconceptions about litigating, and they wanted to address that. And so that’s what they want to share with you guys today.

[2:56] One of the first myths that they want to address is that litigation needs a seasoned attorney to be able to do it and that immigration attorneys are typically transactional attorneys, so we can’t do it. We need to hire somebody else, or it’s just way too complicated. Let’s not touch it.

Here in AILA SoCal, we did a presentation a few weeks ago, talking about this particular topic, and we had an amazing panelist of immigration litigation attorneys talk about the practice, and to most people’s surprise, litigating in immigration court on immigration matters is largely transactional as well. It’s just like filing a particular case. No difference. Very much just all writing, and there’s not a lot of oral appearances. There’s no civil discovery. It’s not any of that that you learned in law school. So if you’re an attorney and you’re afraid of litigating because that’s not what you do, well, bust that myth because it’s not like that. It’s exactly what you’ve been doing, and it’s just another path to win the case.

[3:55] Myth number two is: “Oh I need to do an AAO appeal. I need to do a motion to reopen first. That’s so much work, that’s such a long time. The client can’t wait. I’m already getting fired. There’s no reason why I need to do this. It’s just too difficult.” Well, that is wrong. You can totally just take the denial notice, prepare everything very quickly, do it well, and just bring it to court. Why? Because you don’t need the AAO, you don’t need the motion to reopen, but you don’t need to wait a long time. The court accepts it immediately. There’s now a response time. Once the district court receives your case, now the government is on standby, They have to provide a response, and now tick-tock, tick-tock, now they’re on the timestamp. Now you put the pressure on the government. And if they truly did a bad case, a bad denial, then more likely than not, they’re not going to try to fight it… and they definitely don’t want to litigate it, so they’ll just approve it, right? And so instead of waiting a hugely enormous amount of time with the AAO or the motion to reopen, boom, just directly take it to the district court. And again, myth number one: you don’t have to be afraid. You have what it takes already. You totally can do this.

[4:58] Now why is there this confusion with motion to reopen and AAO? Because both of those are options to get a case overturned. You can do it with district court. You can do also a motion to reopen. Or you can do it with the AAO. Those are all different options available to the attorney and to the client to get their redress heard. But you don’t have to do it, right? You could bypass all of them and directly go to district court. Now maybe a lot of attorneys get it confused because of mandamus actions, and some mandamus actions that is part of the requirement, but in most cases, a lot of cases, it’s not, so you totally can do it.

But what is the difference between AAO, motion to reopen, and filing with district court? So the way I like to explain it to my clients is like if there’s a minor dispute between siblings, well, you can call your older sibling to come and try to resolve the conflict, or if it’s more severe, you call Mommy, and if it’s super severe, then that’s when you bring in Daddy, right? And so different levels of authority, different levels of punishment is at play, and only when there’s the most severe, then that’s when you bring up Daddy from the couch to really lay down the ground rules, and so that’s the situation. You could directly drag the government to court because they did a terrible decision and it completely abused the power, and so now the government will be corrected by the judicial branch. But sometimes if it’s a minor issue: you missed your appointment and they denied your case, well maybe you can just call the USCIS, do a motion to reopen, they refund you, and they give you another appointment. It’s not that severe where you need to drag them to court, right? So there are different levels of severity, and a seasoned attorney will be able to guide you, which is the right path: AAO or is the motion to reopen or the district court, but the point is don’t be afraid of calling Daddy. Don’t be afraid of bringing it to court. That should be part of your toolbox.

[6:49] And the third myth, which is perhaps the most important one that everybody is concerned about, is that the government is going to retaliate if you sue them. So clients have this concern, of course, for their own sakes, but attorneys a lot of times have that concern as well. If I sue USCIS, then they’re going to deny all my future cases and basically, I’m getting disbarred, and I can’t do that. Clients are thinking, “If I sue the government, they might approve my case now, but they’re going to deny my case later on for all these things. That’s terrible, I can’t do that.” But the truth is it’s the exact opposite.

As an attorney when you bring suit before the court, you will have that much more respect by the judge and by the opposing counsel. And they’re not there to ruin your life, your career, or your clients’ life, and their whole family petition. That’s not their job. They’re just trying to adjudicate the case correctly or wrongly. And a lot of times, the way you’re suing is because this one particular officer maybe was too busy, and maybe they just didn’t have enough time. And that’s pretty much the truth, right? A lot of our employees are now working at USCIS, so I know what took us months, years to prepare a case, they only have 20 minutes to read through the whole case. There’s no way they have the resources and the time, to fairly adjudicate the case. So if there is a bad decision, it’s not entirely their fault, it’s just the way the system is, and so bringing suit is actually helping that officer to help the agency correct the wrong that they really shouldn’t have committed anyways.

[8:22] And they’re there to make America great, right? Let’s face it, people who work in the government, they love the government, they’re usually patriotic, right? …They should be patriotic, and we should be patriotic, and everybody should be patriotic, and we’re here to make America great.

[8:36] So when you bring a case before the judge, you’re saying these are a set of laws that you’re supposed to use, maybe you misread this memo, you didn’t apply the right rules here, the supporting documents, maybe you didn’t have time to actually look at it, so please adjudicate this case fairly. And the government officials like, “Oh, yeup. We did botch this job. We didn’t do it correctly. Yes, we should approve it.” They’re not there to say, “Oh my gosh, I’m so angry, my ego is hurt, I’m going to go ruin your life.” Nobody has time for that, right? And so they are not going to go after you. They’re not going to go after your case. To them, it’s a job. To them, they’re trying to do things right. To them, they’re just correcting a mistake. To them, it’s really like they’re the manager being called out because one of the sales reps did something incorrectly in the store, so “Okay, sorry 25% off. Go ahead, you can return this item.” Something along those lines. “Here’s a gift card. You can return it next time.” That’s sort of the situation.

[9:27] This first session, AILA invited the giants of immigration law to gift you, to encourage you, to give you the tools you need to win your first case. There are so many resources available to you. Download their PDFs. Download their PowerPoint Slides. Buy their books. You have the artifacts, the enchantments, and the spells to win your battle. You can totally do it.

And that’s it for day one, session one of AILA’s 2021 conference. We’re trying to release these videos as soon as we can. There are a couple more sessions, so we’re doing today all the way through Saturday. If you have any questions about AILA’s conference or about this particular video, feel free to leave a comment below. Contact these attorneys listed in the comments above. They are an amazing, talented group of videos. If you have any questions as well, happy to talk to you soon.

Take care, see you later, bye.