‘Let’s Take It To Court!’: Federal Litigation as a Solution for Immigration Turmoil

Q&A session with Jonathan Wasden talking to Dan Berger

This conversation was held at the NAFSA 2020 Spring Immigration Workshop held at Worcester Polytechnic Institute on Monday, March 9, 2020.

Jonathan (Jon) D. Wasden represents clients on strategies to overcome immigration denials, including bringing cases to federal court under the Administrative Procedures Act (APA). For a majority of his career, Jon worked as an attorney for various US Governmental agencies, where he defended immigration regulations and decisions under the APA. His last position in government was with the Administrative Appeals Office (AAO), focusing on employment based legal issues and advising on litigation in these areas. He is now a partner at Wasden Banias, a Washington DC metropolitan area law firm specializing in employment based immigration and Administrative Procedures Act litigation.

Dan Berger: How did you get into immigration litigation?

Jonathan Wasden: For much of my career I worked defending the Government in the immigration litigation context. I know the agency’s side of litigation very well. It was very natural for me to continue this practice, but on the plaintiffs’ side now.

How did you get into immigration litigation?

For much of my career I worked defending the Government in the immigration litigation context. I know the agency’s side of litigation very well. It was very natural for me to continue this practice, but on the plaintiffs’ side now.

We are hearing more about litigation now, but were people suing USCIS or INS before 2016? Did that ever work?

Federal Litigation is an important tool that should be in everyone’s tool box. I think lawyers and institutions are starting to reach this conclusion now. However, this tool is still underused in the immigration context. For instance, when a new regulation comes out in any other industry, you immediately see big companies and institutions suing the agency under the APA. This is almost automatic, and has an important role in shaping an agency’s regulations. The only area where we have considerably less litigation activity is immigration. Many immigration policies are very susceptible to litigation challenges. While working for the Department of Justice, we often joked about how embarrassing it would be to try to defend certain policies if they were challenged. However, it seems that immigration lawyers only use this very effective federal litigation tool in desperation and there are no consistent federal litigation practices across the industry.

Litigation is expensive and time consuming with testimony, witnesses, etc. Maybe this is the reason there are not that many lawsuits?

APA litigation is very inexpensive and fast compared to typical litigation. It is streamlined and the decision is made on the administrative record; thus, no discovery or witnesses are involved.

Is it possible for an immigration case to settle? Would the Trump Administration ever settle an immigration case?

The vast majority of cases settle within the first 60 days of filing, which is the point when the Government needs to submit its answer. For example, since 2018 we have challenged around 300 denials of the immigration benefits, and 70% of those cases were reopened and approved within the first 60 days. For litigation on delayed cases this percentage is even higher – about 80%. I see no particular pattern in the government decisions to settle a case. Some cases that I regard as strong don’t get settled, whereas some of the very weak cases do. I think that the government just randomly pushes back on some immigration cases.

Also, you have to understand who is defending those cases. The Office of Immigration Litigation only gets to work on the national-level, high-profile cases. All other individual cases are defended by the Civil Division of the local US Attorney’s Office, where they are normally assigned to new attorneys. They have no interest in understanding the intricacies of immigration regulations or fighting to defend them.

Can you walk us through the steps of filing suit on a particular case?

After the plaintiff files the complaint in the court and serves all the defendants, the Government has 60 days to file its answer. Most of the cases settle at this point. The US Attorney’s office normally makes a call to USCIS and pushes them to approve the petition in question so that they can get rid of the lawsuit. If the government chooses to defend the case and file its answer, the judge would set a scheduling conference to set a timeline for the case. Normally, the case is then decided based on cross motions for summary judgement and takes 6-7 months start to finish.

What’s the difference between Mandamus and an APA suit?

These two causes of action are often confused, but they are not identical. A Writ of Mandamus requires the plaintiff to show that the defendant has a clear duty to perform the act in question – that is a much higher standard to meet than in the APA claim. The Administrative Procedures Act provides a basis for a suit where the government has unreasonably delayed its action or fails to act. While suing under the APA, plaintiffs can rely on the rule of reason. To interpret what is an “unreasonable delay,” courts look at the agency’s regulations, posted processing times, the earliest point in time one is allowed to apply for the benefit, the underlying statutory scheme – all this provides context and enables the court to determine that USCIS unreasonably delayed its action.

Are those the main types you use in immigration? How long should we wait before trying litigation?

We mostly use APA litigation. However, many practitioners and judges do not appreciate the difference between the two and cite both grounds at the same time. Another advantage of suing under the APA is that there is no requirement to exhaust all available remedies before going to court. For a dispute on the final decision, there is no requirement to appeal within the agency before federal litigation can be initiated. Similarly, in the case of delay, there is no need to do a certain number of service requests with USCIS or explore congressional help before going to federal court. We all know these measures are not effective anymore. I, personally, would sue for the delay as soon as the case was outside of the normal processing times.

When we have disagreed with a decision in the past, we have filed again, or sometimes gone to the AAO. Wouldn’t the AAO be cheaper, faster, and less risky?

Absolutely not. If you appeal to AAO, you most likely will end up with a stronger decision denying your case. Also, it can deny the same case based on an unrelated technicality. While I was working for AAO, we were specifically tasked with looking at those cases submitted for appeal through a magnifying glass and searching for any possible reason, any technicality, to deny the case. I do not think going to AAO is a better option. Additionally, appeals at the AAO can take 12 months or more and have a reversal rate of only 3%.

We’ve been told 100 times by congressional offices that there’s really nothing to be done about a security delay (administrative processing)? It seems that no amount of pressure from a senator or college president will help. The FBI has limited resources. Can litigation help

Sometimes it can help, particularly if there is grave harm caused by the delay. A good example would be a diversity visa application. Because this type of application “turns into a pumpkin” if no immigrant visa/green card is issued before the end of the federal fiscal year in October, a security delay may completely foreclose any options for the applicant.

What kinds of suits are you seeing/filing most now? Is it possible to sue on a National Interest Waiver (self-petition green card, NIW) denial?

We see a lot of litigation over delayed adjudications and wrongful H1B denials. It is harder to sue on the denial of an NIW petition. Federal courts do not have subject matter jurisdiction if the decision of the agency is explicitly discretionary or if the statute is structured in a way that suggests discretion. The NIW statute is structured like this. However, it is possible to sue the agency if it has failed to do something that was not discretionary, even in the NIW context.

What is the school’s role in litigation? For example, let’s say an H-1B is denied for specialty occupation. Who sues? Is it the university, or the employee, or both? Is there a rule about who pays? Is the answer different if we are talking about a delayed OPT card or an F-1 student stuck abroad in a security delay?

If we are talking about an H1B denial, either the employer or the employee can sue and anybody can pay. That said, larger institutions have more gravity so we always recommend putting an institution as the first plaintiff. If this is for a student whose F1 is delayed, the school can be the plaintiff together with the student. The government most likely will move to strike the school, but it would achieve the purpose of getting the school’s name out there.

How does licensing work? I know immigration is federal law so our students can work with an immigration lawyer anywhere in the country. Does that work for litigation? Could you, Jon Wasden with an office in Virginia, help a Vermont college sue the Vermont Service Center in federal court in Vermont? Do you ever join forces with a local litigator, let’s say someone the school knows and trusts and who knows the local judges?

Yes, we can. The vehicle to do that is a motion for pro hac vice admission. It allows me, on the petition of a member of the local bar, to appear before a federal court. Pro hac vice rules and fees differ greatly from jurisdiction to jurisdiction, but usually this a simple procedure. I have done it in many states without a problem. New Jersey is a notable exception in that respect – it was such a pain to get pro hac vice there that I promised myself never to take a case in NJ again. Of course it is always better to team up with a local litigator who knows the local court and judges.

Let’s talk now about the bigger picture – can you give us an example of when you have sued on a policy issue? I think STEM OPT third party placement was one of those cases a couple years ago? How did that work?

In 2017, USCIS quietly changed the STEM OPT rule by posting new instructions on its website. This came as a complete surprise. USCIS did not even attempt to follow the APA on this quiet rule making. We filed a complaint in federal court against USCIS and asked for a preliminary injunction to stop the agency from applying the new rule. Then, USCIS responded by removing the new language from its website and filing a motion to dismiss saying that there was no rule to dispute!

Do Judges read amicus briefs? Do you think it is helpful if a school, or a trade group submits an amicus brief?

When an institution has gravity, yes, amicus briefs can be really helpful and can influence the decision a lot. Sometimes an amicus brief can be treated as subject matter expert testimony, and has even more value.

Can you say a few words about nationwide injunctions? We’ve seen the first travel ban stopped by a judge in Hawaii, and the public charge rule stopped last fall. But now, Justice Gorsuch has railed against nationwide injunctions. Are they possible?

This depends on how brave your judge is. In the area of immigration, it does make sense to have nationwide injunctions rather than piecemeal litigation. Having said that, such an injunction probably would not stand on appeal.

Have you sued other immigration-related agencies besides USCIS? In particular – what about the State Department? Sometimes we want to scream when we see an Advisory Opinion or waiver denial for the J-1 Exchange Visitor Visa two-year rule. But we’ve been told that this is all foreign policy so it’s non-reviewable. Or when a student’s F-1 visa is denied or delayed abroad, we’ve been told they have no due process rights outside the country, and that the consular officer’s actions are non-reviewable.
It is possible to sue the Department of State for the delay. It is almost never possible to sue for review of a decision because it only needs to be facially legitimate and bona fide, which is a very low standard for the Government to meet.

When is the best time to sue if an F1 student is stuck outside of the US in administrative processing?

I think 60 days before the start of the program is the best time to bring the suit. The government has 60 days to respond and we have noticed that the State Department tends to run for the door the fastest.

CBP is another tough one. We’ve seen some students turned around at the airport, and given expedited removal. That’s a five-year ban on return to the US. Lawyers tell us that they’ve tried filing Motions to Reconsider, asking CBP to rescind the removal order, but no luck. These students have to file an I-212, which can take forever, and then go to a US consulate to apply for a new visa stamp. Have you ever sued CBP? Did it work?

We have not done it. It may be possible to sue for the delay, but I have not seen anything like this.

Last, before opening up for questions from the audience, I have to ask. Even if we win a lawsuit, isn’t there a longer term risk for our institution, or our student or employee? Aren’t we putting a target on our backs in the future?

Absolutely not! I frequently hear people say that they do not want to go to federal court to challenge immigration decisions because they are afraid the agency would retaliate. This fear has no basis. My experience is completely the opposite. First, DHS is disorganized and there is almost no communication between different agencies within it. And more importantly, a “potential litigation” flag on your case is a good one to have. The agency is terrified of employers and lawyers with a reputation for challenging denials in court. I have literally seen sticky notes on files saying: “possible litigation case.” It was an equivalent of a note: “do not deny if at all possible.” My observation is that frequent litigants always get the benefit of the doubt in a close case- sometimes even more than that. For instance, after a wave of H1B denials that third party placement agencies experienced in 2018 (the approval rate was 30%), some of them went to federal court and some didn’t. For those companies that litigated the H1B denials, the approval rate in 2019 grew sharply to almost 100%, while it remained the same 30% for those who did not go to federal court. So, federal litigation efforts always pay back in the long term perspective.

‘Let’s Take It To Court!’: Federal Litigation as a Solution for Immigration Turmoil

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