Federal Court Immigration Litigation
Immigration-related federal court litigation is drastically different from litigation in the immigration courts, proceedings before the USCIS, or practice before the Board of Immigration Appeals. Federal courts are courts of limited jurisdiction, and can only hear certain claims related to an immigration matter. While litigation in federal courts is often difficult, challenging, and can be lengthy, the federal court process is a terrific option for many immigrants who have “played by the rules” and simply have no other administrative option left.
I have litigated numerous cases in federal courts and have received the following favorable decisions:
Matter of Zmijewska, 24 I. & N. Dec. 87 (BIA 2007): The Board of Immigration Appeals, acting on an order of the federal court (2nd Circuit), ruled that an alien has not voluntarily failed to depart the United States when the alien, through no fault of his or her own, was unaware of the voluntary departure order or was physically unable to depart within the time granted.
Zmijewska v. Gonzales, 426 F.3d 99 (2d Cir. 2005): The Second Ciruit court declared that an alien is not subject to the 10-year bar for failing to leave the country under voluntary departure, if she was not aware of the voluntary departure order through no fault of her own.
Ashley v. Ridge, 288 F.Supp.2d 662 (D.N.J. Oct. 29, 2003): The New Jersey District Court struck down the government’s “automatic stay” of an immigration judge’s grant of a bond to a detained client, who was allowed to post a bond and released while his immigration case was pending.
Federal court litigation can be time-consuming. If you are considering taking your case into federal court, it is wise to consult with an experienced immigration lawyer before spending your time and money on litigation!
Immigration Litigation in Federal Courts
In an immigration-related federal court litigation, you can:
- Challenge the USCIS’ unreasonable delay in adjudicating an application or petition
- Challenge the USCIS’ denial of an application for naturalization
- Challenge the unlawful detention of someone in immigration custody
- Challenge a removal order on legal or constitutional grounds (discretionary decisions cannot be challenged in federal courts)
Challenging the USCIS’ Unreasonable Delay in Adjudicating A Benefits Application
If you have filed a benefits application, such as an adjustment of status (green card) or a naturalization application, and if you have already been interviewed, but have been waiting an unreasonably long time for a decision, you can begin litigation in federal court against the USCIS by filing a mandamus to compel a prompt adjudication. You are ENTITLED to have your benefits application adjudicated and the USCIS is required to adjudicate applications in a reasonable time. Litigation in federal court can lead to a resolution in matter of weeks or months, rather than your having to wait and wonder what is going on with your application.
A mandamus litigation is commenced in the federal district court in the district in which you reside. There may be more than one district court in your state, so it is important to know in which to file the mandamus.
If you have been waiting an unreasonably long time to get an answer from the USCIS on any benefits application or petition you filed, you should consider commencing litigation in federal court to force the USCIS to make a decision on your petition or application. Contact me today if you want to explore your option to commence a law suit against the USCIS in a federal court litigation!
Click here to check the current status of your pending application with the USCIS.
Challenging the USCIS’ Denial of An Application for Naturalization
You can also commence litigation in federal court if the USCIS has erroneously denied your application for naturalization. A majority of the naturalization denials result from the USCIS’ finding that the applicant lacked “good moral character” due to a criminal conviction or convictions. More often than not, these convictions occurred a long time ago and the USCIS should not have looked to them to deny the application. Under the law, the USCIS can only look at the five (5) year period immediately preceding the date you filed your naturalization application. Still, USCIS continues to deny applications for naturalization for old convictions that have nothing to do with the applicant’s present moral character.
Becoming a citizen is an honor and a privilege. If you believe your application was erroneously denied, you should not be afraid to litigate the validity of that denial in federal court. Many times, after litigation is commenced in a federal court and the government attorney (not associated with the USCIS) has reviewed the case, your attorney and the government attorney will reach a reasonable settlement, which allows the applicant to naturalize.
Click to learn more about general requirements for naturalization.
If you believe that your naturalization application was wrongly denied, and you wish to have a federal court judge review that decision, contact me today to see whether your case can be litigated in federal court.
Challenging the Unlawful Detention of Someone in Immigration Custody
Federal court litigation can also be commenced to challenge the unlawful detention of someone in immigration custody. The toughest part of immigration law are issues related to detention. More and more people are being detained by the U.S. Immigration and Customs Enforcement on the basis of either an old deportation order or a recent conviction. Certain aliens (including people with green cards) are subject to mandatory detention under INA § 236(c). Even the Supreme Court of the United States has found that such detention is lawful. However, there are other types of detentions that may be unlawful and you can challenge those in a federal court litigation.
Some of the most common types of detentions that may be unlawful are:
- Detention of a United States citizen; and
- Detention of an alien who is not inadmissible, removable, or deportable under our current immigration laws.
You can litigate the unlawful detention of someone in a federal district court by filing a petition for a writ of habeas corpus. Often times, if deportation is imminent, a habeas corpus petition may be the only way to stop the deportation of the person.
If you are, or someone you know is, unlawfully detained, contact me today to see whether federal court litigation can be commenced to challenge the unlawful detention.
Challenging a Removal Order on Legal or Constitutional Grounds
In very limited instances, you can commence federal court litigation to challenge an order of removal or deportation. Challenges to removal orders are flooding the federal courts. The number of cases filed in federal courts keeps increasing every year. This is because the Board of Immigration Appeals continues to make factual and legal errors in dismissing appeals and denying motions. Additionally, there are instances of ineffective assistance of counsel by other lawyers or representatives that can lead to a removal order.
For you, an unfavorable decision from the Board means the end of your fight at the administrative level. While you can file motions to reconsider and reopen, until and unless the Board grants your motion and reopens your case, you are subject to the decision made on appeal or the motion, which is usually a dismissal (in the case of an appeal) or a denial (in the case of a motion). In the end, this means a removal order against you that can be carried out at any time, day or night, and you can be taken into immigration custody pending your removal from the United States.
You have the option to challenge the Board’s decision in an appropriate federal court on legal or constitutional grounds. However, you only have thirty (30) days from the date of the Board’s decision to begin litigation in federal court. There are no exceptions to this rule. If you do not begin litigation in federal court in a timely fashion, you lose your opportunity to have the unfavorable decision reviewed by a federal court.
Federal court litigation for a review of an order of deportation or removal is commenced by filing a “petition for review” with the appropriate United States Court of Appeals having jurisdiction over your administrative proceedings (location from where the immigration judge rendered a decision in your case). This means if your removal or deportation order was issued by an Immigration Judge in California, which is within the jurisdiction of the Ninth Circuit Court of Appeals, but you now live in New York, which is within the Second Circuit Court of Appeals, you must file your petition for review in the Ninth Circuit Court of Appeals and the Ninth Circuit law will apply to your case. If you file your case in the wrong court, the court will dismiss it, and if the thirty days to file have elapsed, you will not be able to re-file the petition for review in the correct court.
Keep in mind that not every case can be challenged in a federal court. For example, you cannot challenge in a federal court the denial of a discretionary relief, such as adjustment of status, cancellation of removal, or a waiver of deportation of removal. However, you can challenge a finding that you were not eligible for relief such as adjustment of status, cancellation of removal, or a waiver of deportation. You also cannot litigate in federal court to ask the court to issue an order for the agency to make a favorable decision on your petition or application.
To file a proper petition for review in compliance with the current laws, you need to have a lawyer who is experienced in federal court litigation, who understands the Federal Rules of Appellate Procedure and the Local Rules of Court, and is admitted to practice before that Court. Many immigration lawyers are simply unfamiliar with the complicated federal court rules and procedures, which, if not followed strictly, can result in the Court’s dismissal of your petition for review!
Competent Federal Court Litigators
At Law Office of Ruchi Thaker, I firmly believe that you deserve to have a proper evaluation of your case by competent federal court litigator before you embark on a lengthy federal court litigation process. This is because not every immigration lawyer has experience with litigation in federal courts. Before choosing to go to federal court, you should know whether your case can be litigated in a federal court. You should also be aware of the federal court litigation process and timeline, as well as the likelihood of success. Therefore, you should consult with an immigration attorney who is competent in federal court litigation. I have litigated many cases before the federal district courts and courts of appeals throughout the United States, and have effectively settled numerous cases and successfully litigated others.
If you believe that:
(1) you have been waiting an unreasonably long time to get an answer from the USCIS on your petition or application;
(2) your appeal was improperly dismissed by the Board of Immigration Appeals;
(3) your naturalization application was erroneously denied by the USCIS;
(4) your motion to reopen or reconsider was erroneously denied by the Board; or
(5) you have been a victim of ineffective assistance of counsel by your former immigration lawyer or representative
Contact me to see whether it is possible to litigate your case in federal court. This may be your only (or last) chance to stay in America!