You have a case – – or 50 cases – – which have been pending with U.S. Citizenship and Immigration Service (USCIS) or a US Consulate for an unreasonably long period of time. You could complain, send increasingly urgent emails, seek help from a congressperson or senator, go to the Ombudsman – – it may look to the client like you are doing something, but in the end, it is to no avail. You could tell your client that you have done everything and there is nothing else you can do, but that really wouldn’t be correct. You have heard about filing a mandamus complaint, but that seems difficult and time consuming…if you haven’t attended a Federal Court Litigation Conference like the one coming up on October 11.
You have received a denial of a petition that is clearly wrong. You could complain on a listserv or social media if that makes you feel better. You could file a Motion to Reopen or Reconsider or appeal to the AAO, but the timeframe and chances of success are discouraging especially since the AAO is often more an arm of USCIS policy rather than an independent authority analyzing the law. You can explain that these are the only options, but you would not be providing complete advice to the client. Often the best advice is to file a complaint in federal court, which, if the law is on your side, has a better chance of being successful either through judicial decision or settlement and at a quicker pace than an administrative appeal. However, you fear that filing such a declaratory judgment complaint in federal court is both too complicated and too time consuming. Unless of course you have attended a previous Federal Court Litigation Conference and learned that this can be no more complicated than responding to a difficult RFE or NOIT, especially once you have done it once or twice.
I thought doing an E-2 case was complicated – until I did one. I thought doing an EB-5 case was complicated – until I did one. I thought a 212d3 waiver case was complicated, and then I did one. I thought federal court litigation was complicated…well you get the point.
I wasn’t always comfortable filing and litigating cases in federal court, but I sure am now. It makes me feel good being on the offensive rather than on the defensive. It makes me feel good knowing that there will be an attorney on the other side with whom I can discuss the case. It makes me feel good that my case will be decided under the law by a judge. Not to mention that I am serving my clients better, and I have an additional income stream. And, by the way, I can handle litigation while handling every other aspect of an immigration practice. One does not preclude the other.
Even though I have handled hundreds of cases in federal court by now, I am looking forward to AILA’s October 11th Federal Court Conference. I have no doubt that I will learn new things from the experts. I am looking forward to hearing how my colleagues have been successful in getting injunctions as part of declaratory judgment cases. I am interested in learning how the Trump Administration, through its appointment of Supreme Court Justices, has actually improved the chances of various types of federal court immigration litigation. I am interested in learning what the government’s new strategies are for defending against litigation and what our best litigators are doing to counteract those strategies.
I hope I will see you there, and we’ll learn together and share ideas and experiences. A new webcast option is available too for both tracks if you prefer to participate from the convenience of your home or office.