For most immigration attorneys, bringing an action in federal court is the option of last resort, but there are a variety of reasons to consider litigating an immigration matter in federal court, not least of which is the opportunity for one more level of appeal.
Federal court offers the invaluable prospect of presenting your case to judges who are usually exceptionally qualified and astute, who may preside over a capital murder trial one day and your mandamus action the next, and who typically will view the matter objectively on its merits rather than through an immigration prism.
Nonetheless, the decision to challenge agency action in federal court should be reached only after careful consideration. Each federal district court and circuit court of appeals has its own rules and procedures, in addition to the Federal Rules of Civil and Appellate Procedure, so a practitioner must become conversant and comfortable in the rules that govern the jurisdiction in which the action or appeal is brought. Before filing suit or submitting a petition for review, you must also be aware of the obstacles—jurisdictional, procedural, and precedential—to bringing a successful claim. What follows is a discussion of common actions in district court.
Actions in District Court
In district courts, claims are most often filed under the Mandamus Act, to compel adjudication of a delayed application; the Administrative Procedure Act (APA), to challenge a variety of nonremoval and nondetention decisions; and petitions for writ of habeas corpus under 28 U.S.C. § 2241, to challenge the legality, duration, or conditions of detention.
Writs of Mandamus
The Mandamus Act authorizes district courts to order a remedy and, as such, can be used to compel administrative agencies to act. However, while a court may compel the government to take some action, it cannot compel the agency to exercise its discretion in a particular manner, nor can it grant the relief that the plaintiff is seeking from the agency. Because delays in adjudication of applications for immigration benefits (e.g., adjustment of status, issuance of employment authorization documents, scheduling of naturalization cases for interview, issuance of non-immigrant visas, etc.) are commonplace and often lengthy, filing a mandamus action can be an effective way to compel the agency to make a decision. As one court has held, “The duty to act is no duty at all if the deadline is eternity.”
The plaintiff must demonstrate that he or she has a clear right to the relief requested, that the defendant has a clear duty to perform the act in question, and that no other adequate remedy is available. The courts will dismiss a mandamus action where the plaintiff’s claim is moot or where one of the statutory bars to review under INA § 242 applies.
Plaintiffs in a mandamus action should allege jurisdiction under both the mandamus statute, 28 U.S.C. § 1361, and the federal question statute, 28 U.S.C. § 1331. Because mandamus is a civil action, the FRCP and the district court’s local rules apply. Unless otherwise specified, venue in a mandamus action can be in any judicial district in which the defendant resides, in which a substantial part of the events or omissions giving rise to the claim occurred, or in which the plaintiff resides.
Challenging Agency Decisions under the APA
The APA states that a person is entitled to judicial review where that person has suffered a legal wrong because of agency action, or is adversely affected by agency action within the meaning of a relevant statute. The APA is not an independent basis for subject matter jurisdiction in the federal courts. Rather, jurisdiction in APA cases is based on 28 U.S.C. § 1331, which provides a general grant of subject matter jurisdiction to federal district courts in civil actions over “federal questions.”
Although the APA is not a basis for federal court jurisdiction, it does provide a cause of action for parties who have been adversely affected by “agency action.” “Agency action” includes “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Judicial review under the APA is limited: no review is permitted where another statute specifically precludes review, where agency action is committed to agency discretion by law, or where the petitioner has not first exhausted all available administrative remedies.
The APA states that a court can “hold unlawful and set aside agency actions, findings and conclusions” that meet certain criteria. Four of these criteria apply to all cases where the agency action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or without observance of procedures required by law.
To meet the standing requirements under the APA, the plaintiff must not only have suffered injury-in-fact but also demonstrate that the interests to be protected are within the “zone of interests” protected by the statute. Judicial review under the APA is limited to the administrative record that was before the agency when it made its decision, and thus discovery generally is not allowed.
Courts that have ruled on the issue have found that the general six-year statute of limitations for civil actions brought against the United States applies to suits brought against the United States as APA actions.
Writs of Habeas Corpus—Obtaining a Client’s Release from Immigration Detention
The writ of habeas corpus historically “has served as a means of reviewing the legality of executive detention.” The federal habeas corpus statute, 28 U.S.C. § 2241, grants district courts jurisdiction to grant a writ of habeas corpus to any person who is held in “custody” by the federal government in violation of the Constitution, laws, or treaties of the United States.
In the immigration context, a habeas corpus complaint can be an effective way to obtain a client’s release from DHS custody. The REAL ID Act of 2005 eliminated habeas corpus jurisdiction over final orders of removal, deportation, and exclusion and consolidated such review in the court of appeals but did not impact the ongoing availability of habeas corpus to challenge the length or conditions of immigration detention.
A petitioner need not be physically detained to file a habeas corpus petition. Section 2241 states that habeas corpus is available only when a person is “in custody,” however, courts have found that actual physical restraint is not required where other restrictions on liberty can satisfy the “custody” requirement.
The Supreme Court has held that the actual or immediate custodian of the facility where the petitioner is confined is the only proper defendant in a habeas corpus action, but the Court did not specify whether a different rule might apply to immigration-related habeas cases.
“1447(b) Actions”—Judicial Relief for a Delayed Naturalization Application
Where an individual faces an unreasonable delay in obtaining action on a naturalization application, federal courts may provide an avenue of relief: Section 336(b) of the INA grants district courts jurisdiction to intervene where USCIS has failed to make a decision on the naturalization application within 120 days of the applicant’s “examination” by USCIS. These so-called “Section
1447(b) Actions” require the following:
USCIS has failed to make a decision on the naturalization application. Section 1447(b) is only a remedy for a delay in adjudication, and it does not apply if a decision already has been issued.
At least 120 days must have passed since the “examination.” A Section 1447(b) Action is ripe only after USCIS has failed to make a decision within 120 days after the “date on which the examination is conducted under [§ 1446].”
A Section 1447(b) Action must be filed in the federal district court. The statute vests jurisdiction in district court. Courts of appeals and district courts have held that a district court has exclusive jurisdiction upon the filing of a Section 1447(b) Action, and that USCIS consequently is divested of jurisdiction to decide the naturalization application unless the district court remands the case to the agency.
A Section 1447(b) Action must be filed in the federal district court for the district in which the applicant resides.
The district court may either decide the naturalization application or remand to USCIS for adjudication. Despite the statutory authority either to grant or deny a naturalization application, many district courts are reluctant to do so, particularly when security checks are still pending.
“1421(c) Actions”—Judicial Review of Denial of Naturalization Application
If an application for naturalization is denied by USCIS, as opposed to delayed, the applicant has the right to an administrative appeal and a hearing (commonly referred to as an “N-336 hearing”) before a different officer than the one who conducted the original examination and issued the denial, within 180 days from the date on which the appeal is filed. If the application is denied after the N-336 hearing, INA § 310(c) specifically provides direct judicial review in U.S. district court.
Petitioners and their attorneys should be aware of the following:
Review of a naturalization decision under 8 U.S.C. § 1421(c) is not available until after the administrative appeal (N-336) hearing.
Review of the denial shall be in the district court for the district in which the applicant resides.
The district court’s review shall be de novo, where the court will make its own findings of fact and conclusions of law.
The district court shall conduct a new hearing on the application at the request of the applicant.
Challenging Visa Denials—Obtaining Review of Consular Decisions
Though the “doctrine of consular nonreviewability” limits most lawsuits challenging visa denials, a visa applicant may file a writ of mandamus to compel adjudication of an unreasonably delayed visa application. In addition, under certain limited circumstances, a visa denial may be challenged on constitutional grounds notwithstanding the doctrine of consular nonreviewability.
The issuance or denial of visas is the responsibility of consular officers under the INA. The INA and its implementing regulations require that the government demonstrate some basis for applying a particular inadmissibility provision to a visa applicant. In general, a consular officer’s decision to grant or deny a visa petition is not subject to judicial review. However, limited judicial review is available “when United States sponsors of a foreign individual claim that the State Department’s denial of a visa to an alien violated their constitutional rights.”
For example, the courts have recognized that U.S. citizens and lawful residents who have invited a foreign scholar to speak in the United States, and who allege a violation of their First Amendment rights to “hear, speak, and debate with” the excluded visa applicant are parties with standing to challenge a consular visa decision. Under so-called “Mandel review,” a court will inquire only into whether the consular official has provided a “facially legitimate and bona fide reason” for the visa decision. In Mandel, the Supreme Court did not define the term “facially legitimate and bona fide.” However, courts have subsequently devised a three-part inquiry to assess whether a consular official’s proffered reason for a particular visa decision is “facially legitimate and bona fide”:
(1) whether the government provided a reason for the decision; (2) whether the government has a statutory basis for its decision; and (3) whether the cited provision was properly applied to the visa applicant.
Accordingly, to determine whether a consular officer has provided a facially legitimate and bona fide reason for denying a visa to an applicant sponsored by a U.S. citizen or lawful permanent resident, the Court must assess whether the proffered reason has an evidentiary basis. Merely asserting a general or conclusory justification for a visa denial, without supplying any evidentiary basis, is insufficient to establish a facially legitimate and bona fide reason for the denial. The government must do more than merely cite a particular inadmissibility provision to exclude a visa applicant; it must demonstrate that the statute relied upon is properly construed—i.e., that it actually applies to the excluded alien and that the consular officer “has reason to believe” the alien was excludable on the ground cited.
EAJA Fees—Obtaining Attorney’s Fees under the Equal Access to Justice Act
A party that prevails against the government in federal court is authorized to receive payment by the government for attorney’s fees and costs for such successful litigation, under the Equal Access to Justice Act (EAJA). An eligible “prevailing party” is entitled to a fee award both for litigating the case and for litigating the fee request. Fees and costs under EAJA can be awarded regardless of what the client paid, and include coverage for cases taken on a pro bono basis.
In the immigration context, EAJA fees generally are available for successful petitions for review, mandamus actions, or habeas corpus actions, because the EAJA statute applies to “any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action.”
The EAJA fee applicant must establish that it is a “prevailing party,” and that he or she has met the appropriate “net worth” requirements. The application must allege that the government’s litigation position was not substantially justified and that there are no circumstances that would make an award unjust.
EAJA fees are based upon “prevailing market rates for the kind and quality of the services furnished.” Rates may be increased if a “special factor,” such as “the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” Some courts have recognized that a specialized knowledge of immigration law could warrant enhanced attorney rates. Law clerks, paralegals, and expert witnesses also may be compensated under EAJA at the prevailing market rate.
The EAJA fee application must include a statement of the total amount of fees and costs requested and an itemized account of time expended and rates charged. An EAJA fee applicant bears the burden of documenting fees and costs. In general, EAJA will compensate for time that is “reasonably expended on the litigation.” The Supreme Court has expressly approved compensation for time spent drafting the initial pleadings and developing the theory of the case, therefore, requesting compensation for time spent preparing litigation is permissible, but the initial work performed before DHS or the immigration court is not compensable.
For district court actions where neither side appealed to the court of appeals, the EAJA fee application is filed in the district court where the action was adjudicated; on a petition for review, an EAJA fee application is filed in the court of appeals that adjudicated the petition.
The fee application must be filed within 30 days of entry of final judgment in the action, i.e., within 30 days after the expiration of the time for filing an appeal or, if an appeal is filed, within 30 days of entry of final judgment by the court of appeals or the U.S. Supreme Court.
Allen M. Shabani Esq.