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Federal Court Litigation In the Aftermath of the Real ID Act


Monday, June 1, 2009
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Federal district courts continue to play a significant role in reviewing immigration cases, despite the passing of the REAL ID Act of 2005, which makes it more difficult to obtain judicial review of discretionary decisions by U.S. Citizenship & Immigration Services (USCIS) and other government agencies.


The Administrative Procedure Act (APA) generally permits an individual to sue the United States in federal district court when he suffers a legal wrong caused by agency action or inaction. For example, individuals may ask a federal court judge to review USCIS’ denial of certain applications when the decision is arbitrary, capricious and unlawful. This is called a complaint for declaratory relief.


In addition, when a person applies for an immigration benefit, such as naturalization (Form N-400) or adjustment to lawful permanent resident status (Form I-485), and does not receive a decision within a reasonable amount of time, he may petition a federal court judge to order USCIS to process the application and issue a decision in a timely manner. This is called a complaint for mandamus relief.


Federal court litigation, however, remains a costly legal process that requires the expertise of skilled counsel. Moreover, as a threshold matter, plaintiffs must establish that the court has jurisdiction (the authority to apply or interpret the law) in their case. Otherwise, the court may dismiss their complaint for lack of jurisdiction without even considering the merits of their claims. With the passing of the REAL ID Act, establishing jurisdiction has become a tougher hurdle for plaintiffs to overcome.


Section 242(a)(2)(B) of the Immigration & Nationality Act (INA), entitled “Denials of Discretionary Relief,” restricts federal court review of certain discretionary decisions by the government in immigration cases. The REAL ID Act expanded the scope of this statute so that it now applies to discretionary decisions made not only in removal (deportation) proceedings, but also in non-removal cases. Nevertheless, this change did not strip jurisdiction over all federal district court lawsuits, so it is still possible to obtain declaratory relief and mandamus action in some cases.


Declaratory Relief


The complexity of immigration laws and the legal ambiguities over whether an agency decision is discretionary or non-discretionary have resulted in inconsistent outcomes on the extent of federal courts’ jurisdictional powers. Even when jurisdiction is found, the limits in scope of review and deference to agency decisions often affect the results on the merits of the case.


One of the primary legal questions now being debated is whether a federal district court has jurisdiction to review the agency’s denial of a Form I-130 petition, particularly when the denial is based on a sham marriage determination. Typically, an I-130 approval is needed to help a foreign national spouse immigrate to the United States or adjust to lawful permanent resident status.


In the U.S. District Court for the District of Minnesota, two judges have ruled differently in similar but separate cases, with Judge Ann Montgomery finding jurisdiction and Judge James Rosenbaum finding lack of jurisdiction over the agency’s denial of an I-130 petition based on marriage fraud. Igbanugo Partners represented the plaintiffs in both cases.


While the Eighth Circuit Court of Appeals (the appellate court for Minnesota cases) has yet to settle this issue, the Fifth, Second and Seventh Circuits all held recently that they have jurisdiction to review an I-130 petition. In Ayanbadejo v. Chertoff, the Fifth Circuit held that the decision of whether a U.S. citizen entered into sham marriage with a Nigerian citizen, for purposes of their I-130 marriage petition, is non-discretionary and so is not barred from judicial review under the REAL ID Act.


The court reversed the federal district court’s judgment to the extent that it dismissed the I-130 petition for lack of jurisdiction and remanded the case to the district court for further proceedings. Likewise, in Ruiz v. Mukasey, the Second Circuit found that the REAL ID Act did not bar judicial review of UCSIS’ denial of an I-130 petition based on a sham marriage finding. 


The court denied the government’s motion to dismiss the petition for review based on lack of jurisdiction and transferred it to the district court for consideration.  Finally, in Ogbolumani v. Napolitano, the Seventh Circuit found that it had jurisdiction to review USCIS’ denial of a U.S. citizen’s I-130 petition for her Nigerian spouse. Nevertheless, on the merits, it upheld the denial of the I-130 because it agreed with the district court that the foreign national had previously entered a sham marriage.


Mandamus Relief


Several district courts, including the U.S. District Court for the District of Minnesota, have found they have jurisdiction to compel USCIS to adjudicate applications in a reasonable time. In one case, Igbanugo Partners filed suit petitioning the court to compel USCIS to adjudicate the plaintiffs’ asylum-based adjustment of status applications, which had been pending for six years.  Pointing to the APA, which states, “within a reasonable time, each agency shall proceed to conclude a matter presented to it,” plaintiffs argued that the agency failed to perform a duty owed to them.


The court agreed and remanded the case to USCIS to adjudicate the I-485s within 30 days. Plaintiffs were granted lawful permanent resident status in less than 30 days. 


In another case, a foreign national retained Igbanugo Partners to challenge the government’s motion to dismiss his pro se complaint seeking mandamus action in his naturalization case. The plaintiff argued that USCIS had a duty to adjudicate his naturalization application within 120 days after his naturalization examination under section 335 of the INA, but USCIS failed to do so. The government asked the court to dismiss the complaint for lack of jurisdiction because the FBI background check was still pending and the case was not ripe for review. 


In the alternative, the government asked the court to remand the case to USCIS for adjudication with no time limit or deadline. Finding jurisdiction to review the complaint, the court remanded the case to USCIS and ordered it to fulfill its non-discretionary duty to adjudicate the naturalization application within six months. Two months later, the applicant became a naturalized citizen.


Nothing in this article should be taken as legal advice for an individual case or situation.  The information is intended to be general and should not be relied upon for any specific situation.  For legal advice, consult an attorney experienced in immigration law.



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About Igbanugo Partners Int'l Law Firm

Igbanugo Partners Int'l Law Firm is based in Minneapolis, Minnesota. It focuses on (1) U.S. immigration law and (2) international trade law in Sub-Saharan Africa.

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