“The Defendant has filed a notice of removal to federal court.” I’ll never forget the day I heard those words. I was 27 years old and trying to find my way as a self-employed general practitioner. I had taken an employment discrimination case against a local fast food franchisee and filed in my comfort zone, North Carolina state court. Although I was a member of my local federal court, other than my swearing in, I had never darkened its door. It was scary—the grand, Art Deco-styled building built in 1933 near the birthplace of the Sit-In movement, the elaborately decorated courtrooms, the portraits of legendary jurists. What was I going to do?
It sounds simple but I remembered: Although practicing law in state court involves a lot of dramatic performance, I was trained to be a lawyer and not an actor. Read the law. Prepare a response. And do it in writing. As quaint as it sounds, I went to our local law library and dug in. I quickly realized the large law firm which had removed the action to federal court did it TOO LATE! I moved to remand the case back to state court and won in a published opinion. See Parker v. Johnny Tart Enterprises, Inc., 104 F. Supp. 2d 581 (M.D.N.C. 1999). The defendant then settled within weeks, and little ole’ me had made law, less than three years out of law school!
When my immigration practice took off after passage of the Legal Immigration Family Equity (LIFE) Act, I thought it would mark the end of my federal litigation career. It only took a few delayed adjudications and wrongheaded decisions from the then-Immigration and Naturalization Service (INS) to realize I was wrong. In 2001, I purchased AILA’s Litigation Toolbox with its handy CD-ROM of templates and filed my first mandamus petition. Before the government even filed a response in federal court, the Charlotte INS naturalization supervisor called and said they were swearing in my client, stating, “We’re giving him his own private naturalization ceremony.” Wow. That right there is the power of litigation.
Since then, I’ve filed mandamus, APA, and habeas petitions challenging a variety of agency action: name check delays on naturalization; delayed adjudications of visa petitions for beneficiaries in removal proceedings; the constitutionality and contours of mandatory and then prolonged detention; DHS invocation of an automatic stay of release while it appeals a bond decision; INA § 204(c) denials; and Adam Walsh Act denials. Most were resolved before any real litigation occurred. Others were fought out in court, sometimes resulting in more positive developments in the law. See, e.g., Kuffour v. Nielsen, 412 F. Supp. 3d 581 (M.D.N.C. 2019); Boansi v. Johnson, 118 F. Supp. 3d 875 (E.D.N.C. 2015).
Believe me, I don’t possess any special legal prowess. You can do this in three steps. First, you need training. AILA now offers more litigation training than ever before, including free resources on AILA University, in-depth recordings, and publications like the brand new edition of Robert Pauw’s Litigating Immigration Cases in Federal Court. Second, you need to pick your battles. Bad facts make bad law. Finally, you need to mean what you say. If you reach out to USCIS counsel and threaten to pursue litigation if the field office does not adjudicate your client’s application, you need to be prepared to actually sue in federal court. When AILA members like Rekha Sharma-Crawford, Chuck Kuck, or Jeff Joseph say they are going to sue, DHS officials believe them because none of them are going to cry wolf. If the agency doesn’t respond, they will, in Chuck’s words “sue the bastards!”
You are definitely not alone in realizing that litigation is necessary. You are definitely not alone in having butterflies if it’s your first swing at it, either. I remember how it felt. But I also know that you can do this. It can benefit your clients, it can benefit the immigration bar, and ultimately, it can benefit everyone.
AILA members – more information and practice resources, as well as updates on member litigation successes, including the Guilford College case, the TRO requiring EADs be printed, and many more can be found here.