The litigation process in Federal Court is completely different from an immigration court experience. First, there are actual rules we must follow, such as proper venue, jurisdiction, pleadings, format, and even font. Second, we must be admitted to practice in the District Court in which we are seeking to file a case, or seek pro hac vice admission, along with securing local counsel. And, finally, we have to be ready to answer tough questions about the case, the law, and procedure with opposing counsel and a judge who, will likely, NOT be familiar with the immigration language being spoken. For these reasons, it is imperative to seek the counsel of an immigration attorney well-versed in federal litigation before taking your case to court.
Why Federal Court?
We always say federal court is the other way to premium process a delayed case. Additionally, federal court is an avenue to challenge a USCIS decision that is either factually or legally incorrect. Here are some of the types of cases that can be brought before federal court:
- Mandamus action to challenge an unreasonable delay or refusal to take action – typically for a delayed adjustment of status, naturalization application before an interview has happened, U visa applications, etc.
- Declaratory judgment to challenge an improper denial – incorrect legal or factual analysis; procedural errors, etc; but, we must analyze in light of Patel v. Garland, 20-979 (S. Ct., May 16, 2022)
- Petition under Section 1447(b) to challenge delayed adjudication of a naturalization application if 120 days after interview
Here is a summary of how the process works, and what you can do to both prepare and be victorious with your claim:
- Create an underlying record of case that is well-prepared and well-documented;
- Determine the type of lawsuit to be filed – Mandamus, APA/Declaratory Judgment, or 1447(b) for delayed Naturalization;
- Compile the necessary evidence depending on the type of action:
- For APA /Declaratory Judgment claims, all underlying submissions, rfe’s and decisions;
- For mandamus, all evidence of exhaustion of remedies;
- Choose proper venue – where Plaintiff resides, where the case is pending, or where the Defendants have an office;
- Draft complaint for electronic filing, including complaint, all exhibits, summons, civil cover sheet, and electronic filing fee. Use the samples provided on the AIC or AILA litigation page, or obtain one from a litigation mentor; comply with service requirements;
- If it’s a “clean” case, expect contact from AUSA close to the 60 day mark (sometimes sooner) to either confirm adjudication/approval and request for dismissal, or to request extension of time to submit response – this usually means they need more time for a follow up interview, biometrics, rfe, etc., or they need more time because they will be issuing a denial (mandamus); alternatively, more time because they reopen and approve or issue new rfe or NOID w opportunity to respond (APA claim):
- If a denial based on mandamus, then dismissal is the only option because they took the action requested;
- If denial based on APA, then AUSA will file MTD/ Motion for Summary Judgment.
- It is important to discuss how you wish to proceed if the government files a motion to dismiss, or a motion for summary judgment; legal fees, timing, argument made, etc., are all factors to discuss;
- These cases rarely if ever make it to trial!
- Once the case is resolved through approval or decision, a simple voluntary dismissal is the next step to close a case; and
- Note – extensions are often requested by the government attorney – one request is always reasonable and we have no issue consenting; after that, any additional requests will have to be for very good reason and brief, or we start pushing back.
If you would like further information or to discuss a potential case, please call our office at 404.816.8611 to set an appointment with one of our experienced immigration attorneys, or you schedule your consultation online here.