Litigating Cases - PowerPoint Presentation

Slide1

Litigating Cases Under the Administrative Procedure Act (APA)

By Brian C. Schmitt

Hake & Schmitt, Immigration Law--Emphasis on J-1 Waivers www.hake.com/pcSlide2

Application of the APAOverview of concepts:

Time for FilingScope of ReviewProper PlaintiffsProper DefendantsVenue

This presentation is based on the following source material:

Litigating Immigration Cases in Federal Court

, Robert Pauw, American Immigration Lawyers Association (2007). Cited as Pauw at X.

Brian C. Schmitt & Bruce A. Hake, Judicial Review of J-1 Waiver Denials Based on Negative State Department Recommendations, 17 Bender’s Immigr. Bull. 1385 (July 15, 2012). Cited as Schmitt & Hake at X.

2Slide3

Time for FilingA complaint against the government under 28 U.S.C. § 1331 cannot be filed until there is “final agency action.” See APA § 704.

State of limitations under the APA:For lawsuits brought under the APA for declaratory and/or injunctive relief, there is a six-year statute of limitations. See 28 U.S.C. § 2401, which provides: “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.”

Pauw at 161 and

Schmitt & Hake

at 1399.

3Slide4

Time for FilingLaches. An action not filed within a reasonable time may be subject to dismissal under the doctrine of laches.

Equitable defense that may bar a lawsuit where plaintiff has delayed in filing suit. Laches is defined as the “Unreasonable delay in pursuing a right or claim – almost always an equitable one – in a way that prejudices the party against whom relief is sought.” Black’s Law Dictionary 891 (8

th

ed. 2004).

Pauw at 161.

4Slide5

Time for Filing-Laches ContinuedA party asserting laches must show two elements:

(1) a lack of diligence by the party; and(2) prejudice to the party asserting the defense. See Kansas v. Colorado, 514 U.S. 673, 687 (1995).It’s well established that “[m]ere delay alone will not establish laches.” See

In re Beatty

, 306 F.3d 914, 927 (9

th

Cir. 2002).Pauw at 161.5Slide6

Scope of ReviewIn cases brought under 28 U.S.C. § 1331, the APA “generally provides the standards of review for agency action.” See

Spencer Enters., Inc. v. United States, 345 F.3d 683, 688 (9th Cir. 2003). Unless otherwise limited by statute, courts review discretionary decisions for abuse of discretion. See APA § 706(a)(2)(A).

Courts review factual determinations for substantial evidence. See APA § 706(a)(2)(E).

Pauw at 161-62.

6Slide7

Proper Plaintiffs5 U.S.C. § 702 provides that a person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute, is entitled to judicial review thereof.

As long as the district court has subject-matter jurisdiction under 28 U.S.C. § 1331, the APA authorizes suit by persons who suffer an “injury in fact” by reason of the challenged agency action who are “arguably within the zone of interest to be protected or regulated” under the statute. See Data Processing Serv. Orgs.

v.

Camp

, 397 U.S. 150, 152-53 (1970).

Pauw at 162.7Slide8

Proper PlaintiffsIn the immigration context, the appropriate plaintiff is the noncitizen whose application for a benefit has been denied.

In some cases, a U.S. citizen or U.S. employer may also be an appropriate plaintiff. Pauw at 162.

8Slide9

Proper PlaintiffsExample: Where a U.S. citizen or U.S. employer files an application for the benefit of a non-citizen (e.g. I-130 or I-140 petitions), and the application is denied, the U.S. citizen or U.S. employer is the proper plaintiff.

But the noncitizen is “a person suffering a legal wrong” and is “arguably within the zone of interests to be protected,” and thus the noncitizen can bring a lawsuit in his or her own right, although in practice, it’s best to join the petitioner as well.

Pauw at 162.

9Slide10

Proper PlaintiffsAbourezk v. Reagan

, 785 F.2d 1043 (D.C. Cir. 1986) (Ginsburg, J.). U.S. citizens invited noncitizens to speak on nuclear disarmament and women’s issues. Visa denied because speeches would be “prejudicial to the public interest.” D.C. Circuit held

that APA gives inviting U.S. citizens a right to review under the statute and the constitution.

Pauw at

162-63.

10Slide11

Proper DefendantsAPA § 703 provides: If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer.

Generally, it’s useful to name as defendants all the officials, entities, or executive departments that may be able to grant the requested relief (often there is more than one).

Pauw at 163.

11Slide12

Proper DefendantsIf the only defendant named is an officer or agency that doesn’t have authority to afford full relief, the court may not have the ability to compel the

government to grant relief.

Pauw at 163.

12Slide13

Proper DefendantsCommon defendants in immigration-related actions:

The United States;Secretary of Homeland Security;Attorney General of the United States;USCIS Service Center Director; Local USCIS District Director;

Secretary of State, etc. . .

.

Pauw at 163-64.

13Slide14

VenueGoverned by 28 U.S.C. § 1391.

28 U.S.C. § 1391(e) provides: A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action.

Pauw at 164.

14Slide15

VenueApplication in immigration cases:

Example: I-612 hardship waiver application is denied by the California Service Center (CSC) after the State Department issues a Not Favorable Recommendation. Plaintiffs reside in the Southern District of Georgia. Where can the lawsuit be filed?Answer: A district court where any of the defendants resides; the district court where the CSC is located; the district court where the State Department is located; or the judicial district where the plaintiff resides.

In practice, I like to file the action in the judicial district where the plaintiff resides so they can show up to hearings.

15Slide16

Venue Practice PointerWhen preparing to file in the district court where the plaintiff

resides, do the following: (1) Carefully review the local rules in the district to determine the pro hac vice admission requirements. Federal district courts have significant variance in pro hac vice admission requirements. Ensure that you are poised to meet the requirements.

(2) Many courts require sponsor counsel. You can use the AILA directory to find a lawyer

who

will be willing to serve as sponsor counsel. 16Slide17

Review of Discretionary DecisionsPrior to the REAL ID Act, it was an open issue whether INA § 242(a)(2)(B) applies to limit review of discretionary decisions if they are made in removal proceedings or whether

it applies to decisions made outside of removal proceedings. The REAL ID Act resolved the issue by stating that the limitation on judicial review applies whether the decision is made within or outside the context of removal proceedings.

Pauw at 165.

17Slide18

Review of Discretionary DecisionsThis does not mean that agency decisions that involve discretionary aspects are not subject to judicial review. The discretionary aspects of the decision are not subject to review, but the decisions themselves are reviewable for legal and constitutional error.

18

Pauw at 165.Slide19

APA § 701(a)—“Committed to Agency Discretion by Law”

APA § 701(a) provides: This chapter [providing guidelines for judicial review of agency action] applies . . . except to the extent that . . . agency action is committed to agency discretion by law. The Supreme Court has noted that this provision “is applicable in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply

.” Heckler v. Chaney

, 470 U.S. 821 (1985).

Pauw at 165.

19Slide20

APA § 701(a)—“Committed to Agency Discretion by Law”

According to the U.S. Supreme Court, this provision applies in situations where there is “no meaningful standard against which to judge the agency’s exercise of discretion” and consequently, “it is impossible to evaluate agency action for abuse of discretion.” Id

.

As long as there is a “meaningful standard” for judging the agency’s exercise of discretion, § 701(a) should not preclude judicial review.

20

Pauw at 165-66.Slide21

INA § 242(g)INA § 242(g) provides that except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of an alien arising from a decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.

Pauw at 166.

21Slide22

INA § 242(g)Courts have interpreted INA § 242(g) narrowly to preclude three discrete actions that the Attorney General may take: the “decision or action to

commence proceedings, adjudicate cases, or execute removal orders”

(emphasis in original).

Reno v. American-Arab Anti-Discrimination Comm

., 525 U.S. 471, 482-83 (1999).

Pauw at 166.22Slide23

Putting It All Together

Example of the theoretical underpinnings of an APA lawsuit seeking review of a “Not Favorable” recommendation by the State Department Waiver Review Division in an I-612 hardship waiver case.

23Slide24

I-612 Hardship Waiver Procedure

Adjudicated in 3 steps:(1) USCIS determines whether applicant’s departure would impose exceptional hardship on qualifying relatives;(2) If USCIS determines hardship is present, it seeks the recommendation of the State Department; and

(3) If the State Department makes a favorable recommendation, USCIS will grant the waiver. If it makes a

Not Favorable

recommendation, the USCIS must deny the waiver application.

Schmitt & Hake at 1387-88.24Slide25

I-612 Hardship Waiver Procedure-Denials

Adverse decisions by the USCIS at the first step of the process are subject to administrative review by the USCIS Administrative Appeals Office (AAO). These are also subject to judicial review.

There is no administrative review

of

an adverse decision by the State Department. Therefore, a denial founded on a negative State Department recommendation is considered final agency action. 25Schmitt & Hake at 1388.Slide26

History of Judicial Review in I-612

CasesThere have been many efforts to subject this kind of decision to judicial review. The basis for each lawsuit was the APA. Nearly all attempts at litigation on the second step of the waiver process have been unsuccessful because the government has argued that its decisions are isolated from judicial review based on APA § 701(a)(2).

This example will provide many ways to overcome the significant hurdle created by APA § 701(a)(2).

26

Schmitt & Hake

at 1388-89.Slide27

I-612 Litigation-Proper Plaintiffs28 U.S.C.

§ 1331 authorizes suit by persons who suffered an “injury in fact” who are arguably within the “zones of interests to be protected or regulated.”In I-612 hardship waivers, the noncitizen applicant and all qualifying relatives related to the application are proper plaintiffs.

27

Schmitt & Hake

at 1399.Slide28

I-612 Litigation-Proper Defendants

APA § 703 provides: “If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer. . . .”Proper defendants in a complaint for declaratory and injunctive relief against the State Department for a

Not

F

avorable

recommendation are: (1) the Secretary of the U.S. State Department; (2) the head of the department issuing program sponsor views (if applicable); (3) the Chief, Waiver Review Division, U.S. Department of State; (4) the Secretary of Homeland Security; (5) the Director of USCIS; (6) the Director of the USCIS California Service Center; (7) the United States; and (8) the Attorney General of the United States. 28Schmitt & Hake at 1399.Slide29

I-612 Litigation-Venue28 U.S.C. § 1391(e) governs venue.

In the case of an unfavorable recommendation by the State Department, the lawsuit should be brought in the judicial district in which the plaintiff resides. (Main advantage is having the plaintiffs available to show up at possible court hearings.)Remember to work out the logistics of pro hac vice application.

29

Schmitt & Hake

at 1400.Slide30

I-612 Litigation and INA § 242(a)(2)(B)

Does INA § 242(a)(2)(B) block judicial review under the APA? Answer: No. Even though the discretionary elements of the State Department recommendation may be shielded from review, the recommendations themselves are reviewable for error, violations of legal duty, violations of law, and constitutional and treaty violations, among other faults.

30

Schmitt & Hake

at 1400.Slide31

Combating APA § 701(a)(2)The main reason that nearly all attempts at judicial review of this kind of case have failed is the government’s argument that its decisions are isolated from judicial review under APA § 701(a)(2).

Solution: Find every conceivable source of law that could be applied to the case.

31Slide32

Legislative HistoryThere is favorable legislative history on this kind of case. The favorable language shows that Congress intended differing degrees of stringency in adjudicating different kinds of waiver applications.

There are two Service precedent decisions acknowledging the favorable legislative history. Note: These aren’t binding on the State Department, although the record in those cases reflects State Department acquiescence to a waiver based on the facts

in

those cases.

Schmitt & Hake at 1400-03.32Slide33

Legislative History-ContinuedThe legislative history is a source of law for the purposes of this kind of case according to several circuit decisions.

In practice, the State Department and the USCIS do not adhere to the favorable legislative history. Bottom line: The legislative history and the historical, favorable treatment of same by both agencies creates law to apply.

33Slide34

Use of Agency Regulations to Combat APA § 701(a)(2) Arguments

In assessing a hardship waiver application, the State Department considers the following factors: “The Waiver Review Branch shall review the program, policy, and foreign relations aspects of the case, make a recommendation, and forward it to DHS. . . .”Conclusion: This creates law to apply. One can argue that judicial review is necessary to ensure that the State Department adhered to its own regulation in issuing its recommendation. (It sometimes

violates

several sources of law outside of the regulation when it conducts this

analysis.)

34Schmitt & Hake at 1402.Slide35

Due Process-Fundamental Right to Family Unity

Coupling the fundamental constitutional right to family unity with the fundamental right of a U.S. citizen to reside in the United States may give rise to another source of law in this kind of case. INA § 212(e) is not facially unconstitutional, but it may be applied by the agencies in an unconstitutional manner in particular cases.

Schmitt & Hake

at 1404-05.

35Slide36

Due Process-Fundamental Right Example

INA § 212(e) may be applied unconstitutionally in a situation where a qualifying relative cannot accompany the exchange visitor to the home country. This can be demonstrated by showing that the qualifying relative could not legally be admitted to the exchange visitor’s home country. Argument is that INA § 212(e) has been applied unconstitutionally because it infringes on the right of the qualifying relative to family unity.

There are many other constitutional permutations that can give rise to due process arguments.

36

Schmitt & Hake

at 1405.Slide37

Due Process—Fundamental Right to Life

The Due Process Clause of the Fifth Amendment to the United States Constitution provides that “No person shall be . . . deprived of life, liberty, or property, without due process of law.”The U.S. Supreme Court has employed two distinct approaches when faced with a claim to a fundamental right. (This is too complex to discuss in this short presentation. For further discussion, please see cited pages

below.)

37

Schmitt & Hake

at 1406-07.Slide38

Due Process-Fundamental Right to Life-Example

In certain cases, the application of INA § 212(e) in a hardship waiver case may give rise to a Fifth Amendment Due Process Clause argument. E.g. when a qualifying relative has a life-threatening medical condition that could be exacerbated by the stress of separation or relocation, where the condition could not be treated in the home country. If the hardship waiver were denied in this scenario, the qualifying relative could face serious health consequences and even die.

Conclusion: If applicable, this is another source of law that

should

be applied. 38Schmitt & Hake at 1406.Slide39

Violation of the ICCPRThe Constitution’s Supremacy Clause declares that ratified treaties

the are “supreme Law of the Land.” The International Covenant on Civil and Political Rights (ICCPR) was ratified by the United States. Ratification does not give rise to a private right of action.

However, the Supreme Court has recognized that mandamus is an available remedy for a government

official’s

failure to perform duties required by law.

39Schmitt & Hake at 1407-08.Slide40

Violation of the ICCPRThe legal basis for a writ of mandamus to enforce compliance with treaty provisions is too complex for this short presentation. See citation below for a further discussion of the mechanism for this kind of complaint.

An applicant who is denied a hardship waiver may consider filing a complaint for mandamus through various articles in the ICCPR.

Schmitt

& Hake at

1408-09.

40Slide41

ICCPR and Mandamus-Examples

Example 1: File a mandamus action arguing that the government has not taken action to implement one or more provisions of the ICCPR, as it is required to do under the treaty. Example 2: Argue that the application of INA § 212(e) in applicant’s case violates a provision or provisions of the ICCPR. (Common articles that may be implicated in a hardship waiver denial are 13, 17, 23, and 24

.)

41

Schmitt & Hake

at 1408-09.Slide42

Violation of Customary International Law

The “modern position” shows that customary international law is part of our federal common law. During the last three decades, almost every federal court that has considered the modern position has endorsed it.

42

Schmitt & Hake

at 1409.Slide43

Customary International LawIn determining whether a rule has become international law, substantial weight is given to judgments and opinions of national judicial tribunals, judgments and opinions of international tribunals, the writings of scholars, and pronouncements by states that undertake to express a rule of international law, when such pronouncements are not seriously challenged by other states.

43

Schmitt & Hake

at 1409.Slide44

Customary International Law-Examples

Substantive due process rights of fundamental family unity and of U.S. citizens to reside in their country. Due process fundamental right to life. ICCPR. All of the above sources of law evidence enforceable customary international law norms.

44

Schmitt & Hake

at 1409.Slide45

Due Process-Property Interest

An I-612 applicant has a property interest in the application fees paid to the State Department and DHS. Delineating what process is owed is too much for this short presentation. See citation below for further discussion.

45

Schmitt & Hake

at 1410.Slide46

Due Process—Property InterestTypical basis by State Department in a Not Favorable recommendation:

“Pursuant to 22 C.F.R. § 41.63(b)(2)(ii), the Waiver Review Division has reviewed the program, policy, and foreign relations aspects of the case and has determined that these considerations outbalance the Exceptional Hardship claims presented. Therefore, it is the recommendation of the Department of State that the foreign residence requirement of INA 212(e) not be waived.” This statement doesn’t even provide a rational basis for the denial and thus violates the applicant’s right to due process of law under the Fifth Amendment to the United States Constitution.

46

Schmitt & Hake

at 1410.Slide47

Violation of the APA—Rule-MakingAPA § 553 requires federal agencies to take particular steps when creating new rules.

Generally, an agency must provide notice and allow comments prior to enacting the rule. When challenging a rule where this has not occurred, you can seek a declaration of what the law is and an invalidation of the agency rule.

47Slide48

Violation of the APA—Rule-MakingExample: The State Department and DHS have promulgated regulations that provide that if a J-1 is subject to the two-year foreign residence requirement, any J-2 derivative shall also be subject to the two-year foreign residence requirement.

These are substantive rules that create law and impose extra statutory obligations inconsistent with these agencies’ authority delegated by Congress. The rules are inconsistent with the plain language of the statute. The rules are also inconsistent with the legislative history of the statute.

48Slide49

Question and Answer Session

Brian C. SchmittHake & Schmittwww.hake.com/pc

49