13 minute read
Immigration Litigation 101 – Full Admission vs. Pro Hac Vice
brian sCoTT green, esq.
As attorneys, our clients ask us to solve a wide variety of problems. Some of these problems, such as delayed adjudications and incorrect denials of benefits, can be solved through lawsuits filed with U.S. District Courts around the U.S. For example, you may be practicing in Chicago and have a client in Florida whose I-765 EAD applications is delayed at one of the U.S. Citizenship and Immigration Services (USCIS)’s service centers. Your client wants a fast resolution but you are faced with a choice: do you try to help your client by yourself, with co-counsel, or do you refer him or her out to another attorney? Many of us will have the instinct to help our client directly, when possible. That brings us to the next question – where can I file this lawsuit and am I admitted to practice before the right court to take on this case?
Where To Sue?
The federal venue statute at 28 U.S.C. § 1391(e) generally permits lawsuits to be filed against a U.S. government officer or agency in any judicial district where: (A) a defendant resides,
(B) a substantial part of the events or omissions giving rise to the claim occurred, or
(C) where the plaintiff resides if no real property is involved in the action. In the immigration context, this often means that we can file our client’s lawsuit where the USCIS file is located (e.g., California Service Center, Nebraska Service Center, Potomac Service Center, Texas Service Center, or Vermont Service Center) or where the client resides.
Each District Court Is Different
Choosing among these options involves strategy, but for sake of argument, let’s assume that you want to offer your client all of the available options. If your client’s application is delayed at the USCIS Nebraska Service Center, you can seek full admission to the bar of the U.S. District Court for the District of Nebraska. This U.S. District Court does not require you to be a member of the Nebraska State Bar to qualify for admission. What if your client resides in California? All four of the U.S.
District Courts in California require an attorney to hold a California State license to practice law before being eligible to be admitted to practice in the states U.S. District Courts. In this situation, you would need to work with a “local counsel” who is admitted to the Northern, Eastern, Central, or Southern District of California, and who would move for your admission “pro hac vice,” meaning adding an attorney to a case in a jurisdiction where they are not licensed to practice law. Some U.S. District Courts, including the District of Colorado, have eliminated pro hac vice altogether. Any attorney wishing to participate in a case before the District of Colorado must apply for and receive full admission. This provides several advantages over the pro hac vice process, including lower costs to attorneys (one admission fee instead of one fee per case) and easier administration of attorney discipline for the courts (since each attorney is fully within the power of that U.S. District Court). With pro hac vice fees as high as $500.00 per case in the Central District of California and $317.00 per case in the Northern District of California, immigration attorneys have an incentive to gain full admission to the U.S. District Courts where USCIS offices are located, and where their clients reside.
When Full Admission Is Better
Another benefit of full admission, where available, is the ease of filing and receiving notices through the court’s Electronic Case Filing (ECF) system. The Northern District of Texas (NDTX) permits non-Texas bar members to gain full admission to practice before the court, but also requires that at least one “local” attorney (meaning an attorney whose primary law office is located near the NDTX courthouse in the case) be involved in representing any party to the lawsuit (with the exception of Assistant U.S. Attorneys and U.S. Department of Justice “OIL” attorneys). In this court, full admission is a better choice than appearing pro hac vice. A non-resident fully admitted attorney can be listed as cocounsel on the client’s complaint and that attorney will receive ECF notices from the beginning of the case. Attorneys who seek pro hac vice admission for a case enter the case sometime after the lawsuit is filed and will need to apply for and receive permission to use the court’s ECF system. Attorneys who regularly practice before the NDTX will enjoy the privileges of membership and being notified of all filings in their lawsuit, even when they are not the “lead attorney” in the case.
Current Trends
The trend over the last several years has been for U.S. District Courts to loosen the requirements for admission, permitting more attorneys who are not members of the local state bar to practice in federal cases (which very rarely involve local state law). While not joining this trend, the U.S. District Courts for the Southern and Eastern Districts of New York (SDNY and EDNY, where many immigrationrelated lawsuits are filed each year) have liberalized their pro hac vice
admission procedure, by removing the need for a sponsoring local attorney. This means that the immigration lawyer who could be fully admitted to the bar of the U.S. District Court for Nebraska (without a sponsor) would only be able to be admitted on a caseby-case before the EDNY in Brooklyn or the SDNY in Manhattan. This is, of course, still much easier than gaining a New York state license to practice law by either sitting for and passing a bar examination, or applying through reciprocity. How many courts an immigration attorney may want to gain admission to may depend on their client base, the types of clients they represent, and the type of clients that they want to attract. If an immigration attorney is based in California but not licensed to practice law there, they are not able to offer their clients the full arsenal of litigation options, including suing the USCIS California Service Center in the CDCA or NDCA. If that immigration attorney gains full admission to practice from the State of California, they can be admitted to all four of the district courts there, and can also serve as local counsel for the thousands of immigration attorneys around the U.S. who would like to have their clients sue USCIS in the U.S. District Courts in California. The USCIS Potomac Service Center, located in Arlington, Virginia, poses a similar challenge. The U.S. District Court for the Eastern District of Virginia requires Virginia bar admission as a perquisite for admission to practice before its court. While the Commonwealth of Virginia has expanded its reciprocity with sister jurisdictions, the process for being admitted still involves a character investigation with background check, and can take many months or longer to complete. For clients who need to file a lawsuit now, applying for state licensure is likely too long of a process. For these courts, retaining qualified local counsel who can seek your admission pro hac vice is essential. While there is no one-size-fits all approach to deciding between full admission and pro hac vice admission for client lawsuits, an examination of the local rules (each year) can guide us. As U.S. District Courts around the U.S. revise their local rules, more and more are opening their doors to qualified attorneys from other states.
About the Author
Brian S. Green is a solo practitioner in greater Denver, Colorado, who focuses on bringing U.S. District Court challenges to immigration and visa denials and delays, nationwide. Brian has practiced complex litigation and trial work since 2001, and immigration law full-time since 2007. Brian is admitted to practice before eighteen (18) U.S. District Courts around the U.S. Brian “cut his teeth” as a judicial law clerk, assistant public defender, and then as outside trial counsel for General Electric and General Motors Corp. He is a graduate of Washington & Jefferson College and Case Western Reserve University School of Law.
Improving an Immigration Practice with Federal Litigation Capabilities
Joseph genTile, esq.
The ability to litigate in federal court can dramatically improve an immigration law practice. We’ll first discuss why and then how to add these capabilities to your practice.
Why Litigation Matters
First, litigation skills provide immigration law firms with real fullservice capabilities. By adding a litigation threat, immigration counsel can deepen their relationships with clients and provide the one-stop shopping experience many clients appreciate. It also gives clients and counsel more control over any legal matter, no matter its path.
Second, court-room skills come with certain bragging rights. The ability to navigate the courthouse, understand procedural nuances, debate a point with opposing counsel, or try to educate or persuade a federal judge, enhances an attorney’s reputation as a fighter and – whether warranted or not – matches most people’s concept of a TV “trial” lawyer (even though trials are extremely rare). Also, even if you never have to actually litigate, knowing that you can if it becomes necessary has a profound psychological effect on both counsel and client. Third, adding litigation capability is no longer optional as it is now a material component of immigration practice. Even if client and counsel agree that litigation is inappropriate given the unique circumstances involved, an informed decision will still require discussing what litigation would entail. An experienced lawyer will therefore need to advise clients on the pros and cons of litigation, what is possible, what is not possible, what is likely, and how much clients stand to gain, pay or lose in the process.
Fourth, and perhaps most importantly, litigation skills enable counsel to get clients what they want most – results. This result plays out daily in the countless immigration applications that are long-delayed or wrongly denied.
The enormous backlog in immigration applications is well known. Applications that should take months to decide routinely take years, even though the law often requires timely adjudications (30 days in some instances) and where applicants pay substantial application fees. Well-meaning efforts by most immigration counsel – emails, phone calls, and letter-writing campaigns – are frequently futile. This is where litigation comes in.
Faced with these long-delayed and undecided applications, the next step is to sue the government. Pursuant to a Writ of Mandamus, 28 USC § 1361, and the Administrative Procedure Act (APA), 5 U.S.C. § 555(b) & 706(1), applicants can file a lawsuit in federal court and seek an order compelling the government to make a decision on these long-delayed applications.
While these types of cases can only be brought in federal court and reflect all the characteristics of traditional federal litigation, they are relatively simple. For example, there is no jury trial, no discovery, and the issues are straightforward – is the government’s failure to adjudicate an immigration application, given the time it has been pending, reasonable? Also, cases are commonly settled or rendered moot by a decision made within the time it takes for the government to respond to the complaint. A resolution frequently occurs with no motion practice, only requiring a complaint and some initial housekeeping filings. The local U.S. Attorney’s Office (USAO) will often represent the government in these suits and generally regard a delayed immigration application as among the least important on their docket. As a result, and especially if the delay is egregious, government counsel will often lean hard on the relevant immigration agency to promptly adjudicate the delayed application and render the case moot.
In some cases (anecdotally, but which appears to be increasing in frequency), the government may seek to transfer the case to another district court, challenge the complaint by filing a motion to dismiss, or both. While this is sometimes a delay tactic or an effort to reduce the work imposed on the USAO handling the case, it will require some effort on the part of counsel (and costs to the client) to oppose or manage.
For cases that progress beyond a transfer and are attacked substantively, counsel may have to prepare or oppose a motion for summary judgment. However, where motion practice is required, the arguments are frequently limited to the papers, meaning the court decides the issues based on the written submissions. Oral argument in these cases is not as common as in some other types of litigation, and telephonic appearances are frequently permitted.
Finally, because actions to compel a decision involve an administrative factual record, discovery and its attendant motion practice are generally avoided in Mandamus/APA cases. As a result, counsel in these cases do not have to contend with the complexities of discovery.
Armed with the skills to assess and bring these cases, immigration lawyers can sketch out a litigation strategy, review the pros and cons with their clients, craft a winning complaint and negotiate a possible resolution with the government’s lawyers. Even if the decision is to continue waiting, clients deserve the advice and the opportunity to make an informed decision.
Adding Litigation To Your Services
So how do immigration lawyers acquire these skills and – at a minimum – properly advise their clients? There are a few ways.
First, counsel can collaborate and cocounsel with experienced litigators. With the client’s consent, the attorneys can work together, share any fees and jointly benefit the client.
Second, counsel can develop inhouse capabilities by hiring litigators or training their own staff (and themselves) on how to litigate these matters (see below).
Finally, counsel can simply refer litigation matters to experienced and trusted litigation counsel. However, even when referring the matter out, it still pays to learn about the litigation process to properly vet cases and prep clients for the possibility of filing a lawsuit. How, and the pace at which an immigration lawyer goes about adding litigation to their set of skills requires self-awareness, business judgment, and determination. Whether to add litigation to an immigration practice, however, is a no-brainer.
Self-Teaching Immigration Litigation
There are several things you can do to educate yourself on immigration litigation.
First, this quarterly magazine and the resources available at Immigration Lawyers Toolbox ® are a great start. (Note: My firm and I have no financial relationship with the Immigration Lawyers Toolbox ®). Many excellent litigators routinely contribute content here; their insight and experience are valuable.
Second, the American Immigration Lawyers Association (AILA) is a wonderful organization and resource. They have several papers (free of charge) and invaluable books. Chief among them is Robert Pauw’s Litigating Immigration Cases in Federal Court. There are also many templates available through their Administrative Litigation Task Force initiative. Finally, several AILA Listservs, including federal litigation practice and mandamus litigation issues, will put you in touch with fellow immigration litigators and keep you informed on legal trends, insights, and updates.
Third, observing court proceedings and reading filings (such as complaints and motion papers) can be illuminating. For example, if your client has been waiting for years on a particular adjudication or interview, finding a similar case and reading the case file can be eye-opening. These filings can also serve as models for your case.
And finally, finding a mentor in this area is critical. Few of us can learn anything without the help of others, and this is especially true for litigation, where human interaction and nuance play such vital roles.
About the Author:
Joseph Gentile is a co-founding member of Sarraf Gentile LLP, a New York-based law firm that represents immigrants and others in complex federal litigation nationwide. The firm’s cases have recovered over $2 billion.
