Chapter 33 - § 33.2 • OTHER FEDERAL COURT CHALLENGES TO UNLAWFUL AGENCY ACTION
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§ 33.2.1—Exhaustion
Generally, federal courts require that an individual exhaust all administrative remedies mandated by law before seeking federal court redress for constitutional violations.47 The action for which the individual seeks federal court review must mark the "consummation" of the agency's decision-making process and must not be of a merely tentative or interlocutory nature.48 Also, the action must be one by which "rights or obligations have been determined," or from which "legal consequences will flow."49
Attorneys must therefore review the INA and its accompanying federal regulations for a particular cause of action to determine if they must first file an administrative appeal before going to federal court. For example, in the detention context, there is a permissive appeal of custody determinations to the BIA, but such appeals are not required by statute.50 Where there is no statutory exhaustion requirement, courts cannot require administrative exhaustion unless the governing regulations require an administrative appeal and there is a provision staying the administrative decision pending appeal.51
The U.S. Supreme Court in McCarthy v. Madigan specifically provided that where Congress has not clearly required exhaustion, "sound judicial discretion governs."52
In determining whether judicial discretion is warranted, the court will consider (1) whether available remedies provide a genuine opportunity for adequate relief; (2) whether irreparable injury may occur without immediate judicial relief; (3) whether administrative appeal would be futile; and (4) in certain instances, whether a plaintiff has raised a substantial constitutional question.53 Before going into federal court, attorneys will want to demonstrate that at least one (if not all) of these factors is present in the case. Exhaustion may also be excused if "the interest of the individual in retaining prompt access to a federal judicial forum [outweighs] countervailing institutional interests favoring exhaustion."54
Despite the lack of a statutory requirement to exhaust for many immigration applications and procedures, it is always prudent to try to do so. The practitioner should entertain any avenue that he or she can think of to demonstrate to the court a good-faith effort to resolve the issue before the administrative agency prior to seeking redress in the court.
§ 33.2.2—REAL ID
As noted above, in passing REAL ID, Congress in some ways limited judicial review of agency actions while expanding it in others. Congress eliminated judicial review over nearly all discretionary decisions.55 However, it expanded the scope of review over purely constitutional and legal questions.56 It also preserved habeas corpus review over challenges to unlawful detention.57
In framing a federal court challenge, the practitioner needs to be aware of the strictures of REAL ID and draft the complaint in such a way that the action he or she is challenging raises a purely constitutional or legal challenge instead of challenging the agency's exercise of discretion.
§ 33.2.3—Using The Administrative Procedures Act (APA) To Challenge Unlawfully Denied Petitions Or Applications58
It may be possible to use the APA as a means of obtaining judicial review over certain agency determinations. Practitioners have long used the APA to successfully challenge unlawful denials of I-485 adjustment of status applications,59 I-360 religious worker petitions,60 I-360 special immigrant juvenile petitions,61 I-129 H-1B petitions,62 I-140 immigrant visa petitions,63 and I-130 immigrant visa petitions.64
The APA governs the review of an agency action where a plaintiff has suffered a "legal wrong" or has been "adversely affected or aggrieved" by agency action.65 The APA creates a cause of action to address the legal wrong when there are no alternative measures available for challenging the action. For that reason, the APA can be an effective tool for challenging the sorts of unlawful agency actions that immigration lawyers deal with on a daily basis.
The APA is not a jurisdictional statute, and the claimant must couple his or her claim with some other jurisdiction-granting statute, such as the mandamus or federal question statute.66 Generally, the plaintiff must commence the case within six years of the alleged unlawful agency action.67
The nature of the legal wrong or adverse action can take many forms under the APA. For example, a court can review agency action under the APA when it is inconsistent with the agency's own legal standards.68 It can also review arbitrary or capricious actions and decisions that ignore or discount substantial evidence in the administrative record without a rational basis.69 Plaintiffs can challenge an agency's refusal to act or its unreasonable delay in acting, if the act is mandatory — i.e., non-discretionary — in nature.70 Plaintiffs can also challenge actions that violate a constitutional right, power, privilege, or immunity; exceed statutory authority, jurisdiction, limitation, or right; or violate mandatory procedures.71
In most cases, courts will apply the "substantial evidence" test when reviewing agency actions.72 This test applies when the agency rendered its decision after an adjudicatory hearing designed to produce a record to support the action.73 In such cases, the agency decision must be responsive to the evidence provided and based on a consideration of all the relevant factors and evidence.74 The agency must also have based its decision on the record in its entirety.75 The Supreme Court has stated:
Whether or not it was ever permissible for courts to determine the substantiality of evidence supporting [an agency] decision merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn, the new legislation definitively precludes such a theory of review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.76
Alternatively, the district court may apply a de novo standard of review under 5 U.S.C. § 706(2)(F). This section states:
The reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
The U.S. Supreme Court has said that § 706(2)(F) applies in two circumstances: (1) when "the action is adjudicatory in nature and the agency factfinding procedures are inadequate," or (2) when "issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action."77 In some cases, attorneys may convince the court to apply de novo review by arguing that the agency applied inadequate fact-finding procedures.
Finally, plaintiffs can seek review under the arbitrary and capricious standard of review, pursuant to 5 U.S.C. § 706(2)(A). In this instance, the court will determine if there is a rational basis for the agency decision.78 Courts will not, however, review discretionary decisions under this standard.79
§ 33.2.4—Mandamus
Over the past several years, practitioners have been remarkably effective at using the federal mandamus statute to compel the government to adjudicate long-stalled immigration applications. Mandamus litigation has led to accelerated processing of adjustment of status claims, immigrant visa petitions, requests for employment authorization, scheduling of naturalization interviews, and nonimmigrant visa applications. The steep increase in mandamus filings on particular issues, coupled with a growing willingness among district courts to accept jurisdiction and demand prompt adjudication of long-pending cases, has also forced the agencies to make significant policy changes.80
In a number of areas, mandamus remains a very effective means of compelling the government to take action on a stalled case, such as with pre-interview naturalization cases not yet ripe for litigation under INA § 336(b) (8 U.S.C. § 1447(b)) and applications for H-1B, J, L, or other nonimmigrant visas where the beneficiary is either unable to change from his or her current status or is outside the United States awaiting visa issuance by a consulate. In some such cases, the barrier to adjudication remains mere bureaucratic delay; in others, agency inaction results from concerns — often unspecified — about the particular adjustment or naturalization applicant, or about the petitioner or beneficiary (or both) of a nonimmigrant visa. USCIS' unwillingness to adjudicate may stem from perceived fraud, unresolved questions of eligibility, or often-vague national security concerns.
Is the Delay Reasonable?
The first step in assessing a mandamus case is to determine whether the agency delay is "unreasonable" within the meaning of the APA.81 Find out the average or predicted processing time for an application by consulting the USCIS average processing times (on the USCIS website at https://egov.uscis. gov/processing-times/); making a written, telephonic, or online inquiry; or requesting information at a USCIS "InfoPass" appointment. Whether a delay is "unreasonable" under the APA will depend on what type of benefit the applicant is seeking and the average processing time. Also, determine if the statute or regulations provide a timeline for adjudication of the application.82 Finally, determine if the client received, and responded to, a request for evidence (RFE) from USCIS. Also determine any methods used to follow up on the case (e.g., written, online, congressional, in-person) and the resultant responses. If there is no justifiable reason for...
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