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Filing a federal lawsuit to obtain a decision on a delayed immigration application means having a fresh set of eyes reviewing your client’s immigration matter. A set of eyes, it bears noting, that typically belong to a very intelligent and unbiased former litigator; one who is not beholden to USCIS, the executive branch of government or to any part of the immigration apparatus that has been sitting on your client’s immigration application for years without deciding it. Given the important role a judge plays in an immigration dispute, it’s worth considering who these people are and how to appear before them.

First and foremost, most federal judges were once litigators who now presides over a wide range of factual and legal issues – all federal crimes along with a spectrum of civil issues (securities, antitrust, real property, maritime, civil rights, etc.). What binds these disparate topics is an understanding of the federal apparatus and the court’s jurisdiction over it. And to resolve such a wide range of disputes, judges rely on a set of rules and principles that help ensure fairness, efficiency and predictability. These include judicial doctrines, the rules of statutory interpretation, deference to regulatory guidance, as well as various procedural and evidentiary rules, including the court’s local rules and the judge’s own individual rules.

Second, federal judges are appointed for life and often as a capstone to an impressive career and skill set. They are vested with enormous discretion and authority. They can override Congress, void democratically-passed laws, enjoin the US President, or deprive people of life and liberty. On immigration matters they sometimes review legal issues de novo – with unbridled authority. For example, they can summarily reverse a citizenship denial and, seconds later, bestow full citizenship and swear-in the applicant. Lifetime tenure and broad authority make federal judges famously independent. Unlike immigration court judges, who serve at the pleasure of the DOJ, federal judges typically don’t care if they ruffle some bureaucratic feathers at an agency like USCIS. They are under no pressure to rubber stamp anything, generally resist doing so and would likely bristle if accused.

For immigration lawyers who have had client applications unreasonably delayed, having a federal judge assess the reasonableness of the delay is frequently the only path forward. In light of a federal judge’s independence, it’s also a very good option because a judge will likely bring a different (and unbiased) perspective to what has (or hasn’t) happened. They will usually follow the law, insist on a proper computation of time and recognize that “reasonableness” is inconsistent with paying large application fees in order to wait years for a decision. All the while, the applicant’s life is typically harmed in a myriad of ways.

Successfully appearing before a judge immersed in procedure will require counsel to approach the matter in a slightly different way. Critically, counsel need to ensure that they speak the court’s language and adhere to its rules. While voluminous, detailed and interrelated, these rules are absolutely learnable. Stay tuned and we’ll review some of them.