By: Lawrence P. Lataif
Most people are aware from the news that federal lawsuits are often filed in connection with attempts by individual states to regulate immigration, and by individuals seeking to avoid deportation (now called removal) when found guilty of crimes, denied political asylum, or found to be removable based on other grounds.
Much less known is that federal lawsuits are available for immigration benefits which have been wrongfully denied or unreasonably delayed. Such suits, which represent only a small percentage of federal court lawsuits, can be filed by individuals or employers who are aggrieved or prejudiced by USCIS (United States Citizenship and Immigration Services) action (or inaction) in individual cases. While a federal lawsuit is not feasible or advisable in every situation, it can be very effective when a federal district court judge has become, literally, the court of last resort.
What actions can be brought to Federal Court?
Lawsuits for denied or delayed immigration benefits can include claims for:
- Declaratory Judgment
- Injunctive Relief
- Constitutional Violations – Due Process and Equal Protection
- Administrative Procedures Act Violations
- Mandamus Actions
- De Novo Review of Naturalization Denials
- Monetary Damages
- §1983 Civil Rights Actions
Practical Benefits of Filing Suit
Any litigant or lawyer who files a federal court lawsuit must be prepared for lengthy litigation, even though 98.5% of all lawsuits do not go to trial. However, there are practical benefits that accrue to virtually every litigant once a federal court lawsuit has been filed. Among these are:
- Case gets immediate review by U.S. Attorney’s Office
- Case gets reviewed by lawyers from OIL (Office of Immigration Litigation)
- Case gets high level administrative review by USCIS
- Where the issue is unreasonable administrative delay the case is often won without the government ever filing an answer
When Does Litigation Make Sense?
Federal court litigation can be appropriate in any one or more of the following situations:
- CIS policy violates statute or regulations
- CIS policy or regulations are unconstitutional
- Statutes conflict with each other
- USCIS ignores favorable evidence to justify denial
Yet, even in these cases, there are important considerations to address before taking the significant step of filing a federal court action. Exhaustion of administrative remedies must be done, unless there is a very compelling reason against it. The costs involved, including legal fees, third party costs and the substantial commitment of time, must be carefully evaluated. Thought must also be given to whether other relief is available to fix the problem, such as a different immigration filing strategy or Congressional action that may change the applicable law.
Helpful Research Resources
Examples of federal court litigation addressed above can be found at the following research resources:
- Immigration LexisNexis Community (formerly Bender’s Immigration Bulletin – Daily Edition) - www.lexisnexis.com/community/portal/
- Immigration Daily - www.ilw.com
- Interpreter Releases – Federal Case Summaries by Gerald Seipp
- WSJ Law Blog - blogs.wsj.com/law
- SCOTUSblog - www.scotusblog.com