Think Immigration: The Most Powerful Immigration Practice Tool – U.S. District Court Litigation

Every day, immigration lawyers post to their listservs railing against the horribly unfair decisions issued by the U.S. Citizenship and Immigration Services (USCIS). Just recently, I read about an I-130 denial where USCIS rejected sworn testimony as “self-serving” and upheld an INA 204(c) marriage fraud finding. I responded to this immigration attorney and said that beyond the details in his clients’ case, the fact that he is in Chicago should make him lean into federal litigation as a solution. Why? Because my co-counsel, Mike Jarecki, and I recently won a challenge to a specious INA 204(c) denial in the case of Bristow v. USCIS, No. 22 C 991, 2024 WL 1328825 (N.D. Ill. Mar. 28, 2024). There, the Chief Judge of the Northern District of Illinois found that USCIS utterly failed to meet its threshold of pointing to clear and convincing evidence to support a lifetime ban for marriage fraud under INA Section 204(c).

On the business side of our practice, Senior U.S. District Judge Paul Friedman recently denied summary judgment to USCIS and wholly rejected the agency’s alleged “path of funds” requirement for EB-5 immigrant investor I-526 petitions. Judge Friedman found that USCIS completely made up this “path of funds” requirement and could not deny the investor’s petition based on an alleged failure to trace the legality and ownership of the investment funds to their earliest origin in world history. I kid, but not by much. See Battineni v. Mayorkas, 2024 WL 4367522 (D.D.C. Oct. 2, 2024).

These are discrete, legal issues that immigration lawyers face in the current U.S. immigration system, where agency policies and adjudication standards shift and change day-by-day. This is just one additional challenge to our already tough legal practices, on top of historic USCIS processing delays. Our clients frequently assume that we are not doing enough to dissuade USCIS from denying their cases or processing their long-delayed applications. So, what can we do? It rhymes … sue!

Some readers will chuckle, as this has become my unofficial catch phrase. But when you look at the institutional biases and priorities at the U.S. Department of Justice’s Board of Immigration Appeals (BIA) and the USCIS’s Administrative Appeals Office (AAO), having your challenge reviewed by an independent, lifetime-appointed Article III judge makes sense. An AILA member who previously served as an AAO adjudicator shared at an AILA conference that he had been instructed to uphold USCIS decisions whenever possible. While U.S. district judges often defer to USCIS and its decisions, that is not always the case and may be less frequent now that the U.S. Supreme Court has cut back on federal agency discretion in its decision in Loper Bright v. Raimondo, 144 S.Ct. 2244, 219 L.Ed.2d 832 (2024). In Loper Bright, the Supreme Court majority found that federal agencies cannot interpret Congressional statutes to either expand or narrow the purpose or effect of a statute. In the Battineni decision, Judge Friedman clarified that Loper Bright did not apply, since USCIS was interpreting its own regulation, not a statute. But Judge Friedman also very helpfully commented in footnote 3, that where a statute or regulation is not ambiguous, U.S. district courts owe no deference to federal agency interpretations. See Battineni, at *7, fn. 3.

So, what does this mean for immigration lawyers and their clients? There has never been a better time to challenge unreasonable denials issued by USCIS (and other federal agencies), and to challenge historically awful immigration processing times in U.S. district courts. This is why I was so excited to have co-chaired, along with AILA member and federal litigator Rex Chen, AILA’s Federal District Court Litigation Online Course, which just went live for pre-registration. Our committee was comprised of the most-experienced AILA members who have litigated cases across the U.S. This course is also unique in that it does not focus on any one area of U.S. immigration practice – it covers litigation on USCIS benefits, writs of mandamus (for delays), writs of habeas corpus (for custody), agency subpoenas, naturalization, and even denaturalization. This course is perfect for those who want to add federal litigation to their toolbox, and even for those with some experience in litigating one area of U.S. immigration, but who want to expand their litigation capabilities. From beginners to intermediate federal litigators, this online course provides the foundation to litigate in any area of U.S. immigration law that may arise. Come learn from our expert instructors as they guide you through both the practical and theoretical aspects of litigation practice, and share their knowledge with you in handouts, hypotheticals, and easy to complete exercises. Your clients will thank you for it.

Brian Green wrote this blog post and is the co-chair of the AILA Federal District Court Online Course Committee.

We hope you enjoyed this post on Think Immigration! We’re always looking for fresh perspectives and voices to join our community of contributors. If you’re an AILA member passionate about immigration and have insights, stories, or expertise to share, we invite you to write for us. Visit our FAQs to learn more about how you can contribute to the conversation and make sure you bookmark our Think Immigration page so you don’t miss any blog posts.