FEDERAL COURT LITIGATIONFOR
BUSINESS PRACTITIONERS
Robert Pauw, Seattle, Washington
Brent Renison, Portland, Oregon
AILA ADMINISTRATIVE LITIGATION TASK FORCE (ALTF)
Where can I find the ALTF?
www.aila.org/infonet/administrative-litigation-task-force
2019 NW Regional Immigration Law ConferenceBusiness Track Session 2: Federal Court Litigation for business practitioners
Robert Pauw & Brent Renison
February 14-15, 2019 Page 1 of 14
TOPICS COVERED
APA Review Venue Jurisdiction
Standing Exhaustion Deference
Standard of Review
Interim Relief Q & A
THE ADMINISTRATIVE PROCEDURE ACT (APA)
• 5 U.S.C. §§701-706
• APA governs review of agency action where a person has suffered a legal wrong or been adversely effected by agency action
• Must be filed within 6 years of unlawful agency action
• Not jurisdictional. Jurisdiction under 28 U.S.C. §1331
District courts have original jurisdiction of all civil actions “arising under the Constitution, laws, or treaties of the United States”
2019 NW Regional Immigration Law ConferenceBusiness Track Session 2: Federal Court Litigation for business practitioners
Robert Pauw & Brent Renison
February 14-15, 2019 Page 2 of 14
VENUE CONSIDERATIONS
28 U.S.C. §1391
(1) where a defendant resides
(2) where a substantial part of the events occurred
(3) where the plaintiff resides
(4) in D.C. District Court
INA §242(A)(2)(B)DISCRETIONARY DECISIONS
• Is jurisdiction precluded under INA §242(a)(2)(B)?
Authority “specified under this title to be in the discretion of … the Secretary of Homeland Security”
• Kucana, 558 U.S. 233 (2010) (agency cannot preclude judicial review by defining a decision as discretionary)
• INA §204(c)(1): the visa petition “shall be determined … upon petition of the importing employer”
• INA §205: Secretary of DHS can revoke approved petition “for what he deems to be good and sufficient cause”
2019 NW Regional Immigration Law ConferenceBusiness Track Session 2: Federal Court Litigation for business practitioners
Robert Pauw & Brent Renison
February 14-15, 2019 Page 3 of 14
INA §242(A)(2)(B)DISCRETIONARY DECISIONS
Reviewable Aspects of Discretionary Decisions
• Violation of Due Process
Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015)
• Statutory Eligibility for Discretionary Benefit
INS v. St. Cyr, 533 U.S. 289 (2001)
• Application of Law to Undisputed Facts
Xiao Ji Chen v. Gonzales, 471 F.3d 315 (2d Cir. 2006)
• Unlawful Exercise of Discretion
Hernandez v. Gonzales, 345 F.3d 824 (9th Cir. 2003)
• Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
(1) Plaintiff has suffered an “injury in fact” – an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent
(2) A causal connection between the injury and the conduct complained of, not the result of the independent action of some third party not before the court. . . .
(3) Likely that the injury will be redressed by a favorable decision
STANDING
2019 NW Regional Immigration Law ConferenceBusiness Track Session 2: Federal Court Litigation for business practitioners
Robert Pauw & Brent Renison
February 14-15, 2019 Page 4 of 14
STANDING TO SUESTRATEGIC CONSIDERATIONS
Why a Corporate
Plaintiff might not want to sue
Beneficiaries as Plaintiffs
Organizations or Associations
as Plaintiffs
BENEFICIARY STANDING
• Mantena v. Johnson, 809 F.3d 721, 731, 732 (2d Cir. N.Y. 2015) (beneficiary of I-140 has standing to challenge decision to revoke)
• Shalom Pentecostal Church v. Acting Secretary of DHS, 783 F.3d 156, 161-162 (3d Cir. 2015) (religious worker beneficiary has standing to challenge denial of the I-360 petition)
• Abboud v. INS, 140 F.3d 843, 847 (9th Cir. 1998) (beneficiary of an I-130 petition has standing to challenge denial)
• Ilyabaev v. Kane, 847 F. Supp. 2d 1168 (D.Ariz. 2012) (beneficiary who relied on I-140 to port to new employer has standing to challenge revocation of I-140 petition)
2019 NW Regional Immigration Law ConferenceBusiness Track Session 2: Federal Court Litigation for business practitioners
Robert Pauw & Brent Renison
February 14-15, 2019 Page 5 of 14
EXHAUSTION OF ADMINISTRATIVE REMEDIES
• An appeal is final and can be appealed if:
(1) Lawsuit brought pursuant to the APA;
(2) No statute mandates administrative appeal; and
(3) If an agency rule requires an administrative appeal, the administrative decision is inoperative during appeal
Darby v. Cisneros, 509 U.S. 137 (1993)
McCarthy v. Madison, 503 U.S. 140, 144 (1992)
• 8 C.F.R. §214.2(l)(10): a denied petition “may be appealed”
CHEVRONDEFERENCE
Step 1: Is the statute ambiguous?
Step 2: Has Congress delegated the authority to interpret the statutory provision?
Step 3: Has the agency exercised authority to “make new law”?
Step 4: Is the agency’s interpretation permissible?
2019 NW Regional Immigration Law ConferenceBusiness Track Session 2: Federal Court Litigation for business practitioners
Robert Pauw & Brent Renison
February 14-15, 2019 Page 6 of 14
CHEVRON DEFERENCE
Step 1: Ambiguous Statute“Traditional Tools of Statutory Construction”
INS v. Cordoza-Fonseca, 480 U.S. 421, 446 (1987)
Arangure v. Whitaker, 911 F.3d 333 (6th Cir. 2018)Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018)Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10thCir. 2016)
CHEVRON DEFERENCE
Step 2: Congressional Delegation
Minasyan v. Gonzales, 401 F.3d 1069, 1074 (9th Cir. 2005)
No Chevron deference to agency’s interpretation of citizenship laws
Step 3: Agency “Makes New Law”
U.S. v. Mead, 533 U.S. 218 (2001)
No Chevron deference to non-precedent agency decisions
2019 NW Regional Immigration Law ConferenceBusiness Track Session 2: Federal Court Litigation for business practitioners
Robert Pauw & Brent Renison
February 14-15, 2019 Page 7 of 14
CHEVRON DEFERENCE
Step 4: A Permissible Interpretation
Mellouli v. Lynch, 135 S.Ct. 1980, 1982 (2015)
Negusie v. Holder, 129 S.Ct. 1159, 1167-68 (2009)
AUER DEFERENCE
Should the court grant Chevron deference to the agency interpretation of its own regulation? Auer v. Robbins, 519 U.S. 452 (1997)
agency’s interpretation generally “controlling unless plainly erroneous or inconsistent with the regulation”
Fogo de Chao, 769 F.3d 1127, 1136 (D.C. Cir. 2014)no deference if the regulation “largely parrots rather than interprets” the statute
2019 NW Regional Immigration Law ConferenceBusiness Track Session 2: Federal Court Litigation for business practitioners
Robert Pauw & Brent Renison
February 14-15, 2019 Page 8 of 14
STANDARD OF
REVIEW
APA §706:
The reviewing court shall … set aside agency action … found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right [or] privilege, …
(C) in excess of statutory jurisdiction [or] authority …
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence [in cases reviewed on the record] …
• 1997-2010: over 200 L-1B specialized knowledge petitions approved for churrasqueiros
• Jan 2010: Fogo de Chao files a new well-documented L-1B petition
• Oct 2010: VSC issues poorly reasoned denial
CAN A COMPLAINT BE FILED IN DISTRICT COURT?
Fogo de Chao v. DHS,769 F.3d 1127 (D.C. Cir. 2014)
2019 NW Regional Immigration Law ConferenceBusiness Track Session 2: Federal Court Litigation for business practitioners
Robert Pauw & Brent Renison
February 14-15, 2019 Page 9 of 14
FAILURE TO GIVE
REASONED ANALYSIS
• AAO denies L-1B visa: “cultural knowledge” cannot constitute “specialized knowledge”
• a decision is arbitrary and capricious if it is not adequately explained or supported by agency precedent
• the court looks only to the agency decision, not a post-hoc rationalization
SEC v. Chenery Corp, 318 U.S. 80, 87-88 (1943)
INCONSISTENT PRIOR
DECISIONS
• 250 petitions for churrasquierochefs previously approved
• “a pattern of visa grants of sufficient magnitude could obligate the agency to provide a reasoned explanation for … treating similar situations differently”
• BUT: the petitioner has the burden of proving the pattern of prior approvals
2019 NW Regional Immigration Law ConferenceBusiness Track Session 2: Federal Court Litigation for business practitioners
Robert Pauw & Brent Renison
February 14-15, 2019 Page 10 of 14
FAILURE TO
CONSIDER EVIDENCE
• Petitioner submits an affidavit and letter stating that the applicant completed the required training program
• AAO: the Petitioner did not provide any evidence to confirm that the Beneficiary completed the training program
• the AAO has “at least a minimal obligation to provide adequate reasons explaining why it has rejected uncontradicted evidence”
WHAT DO YOU FILE?
A complaint in U.S. District Court Civil cover sheet
Summons Filing fee
Exhibits to complaint (e.g., documents from
the administrative record)
Electronic filing
2019 NW Regional Immigration Law ConferenceBusiness Track Session 2: Federal Court Litigation for business practitioners
Robert Pauw & Brent Renison
February 14-15, 2019 Page 11 of 14
WHAT MAKES A GOOD COMPLAINT?
-Clear statement of relevant facts and
procedure
-Accurate statement
of jurisdiction
-Background
facts and law needed
to understand the issue
-Remember, U.S. District
Court judges are generalists
-Properly framed counts
-Compelling narrative
-Evocative language but
not melodrama
WHAT TO EXPECT?
Settlement?
A motion to dismiss?An answer
Discovery!
2019 NW Regional Immigration Law ConferenceBusiness Track Session 2: Federal Court Litigation for business practitioners
Robert Pauw & Brent Renison
February 14-15, 2019 Page 12 of 14
INTERIM RELIEF• Unlawful Presence
§212(a)(9)(B), (C)
• Unauthorized Status
§245(c) and §245(k)
• Unauthorized Employment
§245(c) and §245(k)
Xiao Lu Ma v. Sessions, 907 F.3d 1191 (9th Cir. 2018)
Standard for a TRO or Injunction(1) likelihood of success on the merits
(2) irreparable injury
(3) Substantial injury to other parties
(4) public interest
Nken v. Holder, 556 U.S. 418, 434 (2009)
National Center for Immigrants’ Rights v. INS, 743 F.2d 1365, 1369 (9th Cir. 1984)
ADDITIONAL SIGNIFICANT DECISIONS
Soltane v. DOJ, 381 F.3d 143 (3d Cir. 2004)(improper interpretation of “religious occupation”)
Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005)(denial of AOS)
Fred 26 Importers v. DHS, 445 F.Supp.2d 1174 (C.D.Cal. 2006) (improper denial of H-1B “specialty occupation”)
Abdur-Rahman v. Napolitano, 814 F.Supp.2d 1087 (W.D.Wash. 2010)814 F.Supp.2d 1098 (W.D.Wash. 2011) (revocation of I-140 and H-1B visa)
2019 NW Regional Immigration Law ConferenceBusiness Track Session 2: Federal Court Litigation for business practitioners
Robert Pauw & Brent Renison
February 14-15, 2019 Page 13 of 14
QUESTIONS?
2019 NW Regional Immigration Law ConferenceBusiness Track Session 2: Federal Court Litigation for business practitioners
Robert Pauw & Brent Renison
February 14-15, 2019 Page 14 of 14