federal court litigation for business practitioners - 01... · business track session 2: federal...

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 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”



February 14-15, 2019 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”



February 14-15, 2019 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



February 14-15, 2019 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)



February 14-15, 2019 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?



February 14-15, 2019 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



February 14-15, 2019 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



February 14-15, 2019 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)



February 14-15, 2019 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



February 14-15, 2019 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



February 14-15, 2019 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!



February 14-15, 2019 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)



February 14-15, 2019 of 14

QUESTIONS?



February 14-15, 2019 of 14

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