“The defendant has applied to the federal court for removal.” I will never forget the day I heard these words. I was 27 years old and tried to find my way as an independent general practitioner. I had started a discrimination case against a local fast food franchisee and filed it in my comfort zone at North Carolina State Court. Although I was a member of my local federal court, other than my swearing in, I never blacked out the door. It was scary – the grand Art Deco-style building built in 1933 near the birthplace of the sit-in movement, the ornately decorated courtrooms, and the portraits of legendary lawyers. What should I do?
It sounds simple, but I remembered that although practicing law in state courts involves a lot of dramatic feats, I was trained to be a lawyer, not an actor. Read the law. Prepare an answer. And do it in writing. As quaint as it sounds, I went to our local law library and dug into it. I quickly realized that the big law firm that brought the lawsuit in federal court did it TOO LATE! I moved to refer the case back to the state court and won in a published statement. See Parker vs. Johnny Tart Enterprises, Inc.., 104 F. Supp. 2d 581 (MDNC 1999). The defendant then settled down within a few weeks, and the little old man had studied law less than three years after he graduated from law school!
When my immigration practice began after the Legal Immigration Family Equity (LIFE) law was passed, I thought it would mean the end of my practice Federal disputes career. It only took a few belated decisions and wrong decisions by the then Immigration and Naturalization Service (INS) to realize I was wrong. In 2001 I bought it AILA’s Litigation Toolbox with his handy CD-ROM with templates and submitted my first Mandamus petition. Before the government even filed a response in federal court, the naturalization officer from Charlotte INS called and said they swear by my client and said, “We’re giving him his own private naturalization ceremony.” Impressive. That is exactly the power of litigation.
Since then I’ve submitted Mandamus, APA and Habeas petitions that challenge a variety of actions taken by the Agency: delays in naturalization in name verification; Delayed decision on visa applications for beneficiaries in deportation proceedings; the constitutionality and contours of compulsory and then prolonged detention; DHS Call for Automatic Suspension of Release pending appeal decision on loan; INA § 204 (c) rejections; and Adam Walsh Act denies. Most were resolved before any real litigation broke out. Others were fought in court, which sometimes led to more positive developments in the law. See e.g., Kuffour v. Nielsen412 F. Supp. 3d 581 (MDNC 2019); Boansi v. Johnson118 F. Supp. 3d 875 (EDNC 2015).
Believe me, I don’t have any special legal skills. You can do this in three steps. First you need training. AILA now offers more litigation than ever before, including Free resources at AILA University, extensive recordingsand publications like the brand new edition of Robert Pauw’s Litigation in immigration cases before the federal court. Second, you need to choose your battles. Bad facts make bad law. After all, you have to mean what you say. If you turn to the USCIS attorney and face a lawsuit if the field office doesn’t rule on your client’s application, you need to be ready to actually go to federal court. When AILA members like Rekha Sharma-Crawford, Chuck Kuck or Jeff Joseph say they will sue, DHS officials believe them because none of them will cry wolf. If the agency doesn’t respond, they’ll, in Chuck’s words, sue the bastards!
You are definitely not the only one realizing that litigation is necessary. You are definitely not alone with butterflies if it is your first strike too. I remember how it felt. But I also know that you can do this. It can benefit your customers, it can benefit immigration, and ultimately it can benefit everyone.
AILA Members – More practical information and resources, as well as updates on litigation successes with members, including the Guilford College In this case, the TRO that requires EADs must be printed and many more can be printed found here.
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