2021 AILA Fall Conference and Webcast: Federal Court Litigation

Welcome to the 2021 AILA Fall Conferences and Webcasts

schedule iconMonday, October 11, 2021

Track 1: Federal Court Removal Litigation

Track 2: Federal Court Business Litigation

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Track 1: Federal Court Removal Litigation Track

schedule iconMonday, October 11, 2021

*Note: All Times Indicated Below Are Pacific Time

WELCOME AND REMARKS

Michael S. Vastine, Conference Program Chair, Miami Gardens, FL


Join Meeting

Session Link: https://zoom.us/j/94114084108

JURISDICTIONAL ISSUES: INA §242

Those pesky law school Socratic method questions arise again! What is a question of law or a true constitutional claim? What is a finding of fact versus a mixed question of law? What is the standard of review at the circuit court of appeals level?

Join our panelists as they discuss challenges and strategies to overcome jurisdictional bars that government attorneys undoubtedly will raise. With the Biden administration’s revocation of some of the prior administration’s precedent decisions and policies, learn where the litigation potholes remain and how to avoid them.

  • INA §242(a)(2)(B): After Guerrero-Lasprilla v. Barr, What Constitutes a Discretionary Decision That Bars Judicial Review?
    • Denial of Motions to Reopen, Reconsider, and Remand Under Current Attorney General and U.S. Supreme Court Precedent
    • Denials of Motions to Continue, Administratively Close, and Terminate Under Current Attorney General and Board of Immigration Appeals (BIA) Precedent
    • Particularly Serious Crime Findings by Immigration Judges and the BIA
  • INA §242(a)(2)(C): How to Get Judicial Review of Agency Decisions with Criminal Convictions
  • INA §242(a)(5) and (b)(9): When to Bring an Affirmative Challenge Instead of a Petition for Review

Faculty:

  • Maria T. Baldini-Potermin (DL), AILA Federal Court Litigation Section Steering Committee, Conference Program Committee, Chicago, IL
  • Stephen Kang, Detention Attorney, ACLU Immigrants’ Rights Project, San Francisco, CA
  • Mark Barr, AILA Federal Court Litigation Section Steering Committee/Amicus Committee, Denver, CO


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Session Link: https://zoom.us/j/94067146216

9:10 am – 9:30 am Virtual Coffee Break

LITIGATING DENATURALIZATION PROCEEDINGS: PROCEDURE AND STRATEGIES

The U.S. Department of Justice’s (DOJ’s) prosecution of denaturalization cases are at full throttle. Our panel of experts will help you understand the denaturalization process and provide cutting edge defenses and strategies in denaturalization proceedings. They also will advise on litigation strategies and defenses to both civil denaturalization and denaturalization in the criminal conviction context, and will provide tools and strategies on using immigration attorneys as expert witnesses.

  • Strategies and Discovery, Overcoming the U.S. Attorney’s Motion for Judgment on the Pleadings
  • Looking Beyond the Denaturalization Complaint: Is the Client Removable? Is There Possible Relief?
    • Post-Conviction Motions and Pardons
    • Potential Settlement
    • Developing and Protecting the Record for Possible Removal Proceedings
  • Immigration Counsel as Expert Witness

Faculty:

  • Raymond R. Bolourtchi (DL), Conference Program Committee, St. Louis, MO
  • Margaret D. Stock, AILA Author, Immigration Law & the Military, 2nd Ed., Anchorage, AK
  • Matthew L. Hoppock, Overland Park, KS


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Session Link: https://zoom.us/j/93710242962

10:30 am – 10:50 am Virtual Coffee Break

CIVIL RIGHTS ADVOCACY THROUGH DAMAGES ACTIONS

Damages actions are perhaps the primary tool for seeking accountability for law enforcement abuses and other civil rights violations. The panelists will explore the different tools that are available, and lay out the steps of filing complaints under the Federal Torts Claims Act (FTCA), Bivens actions, and §1983 litigation.

  • FTCA Claims
  • Bivens: What Does It Add Beyond FTCA, and What Is Left of It?
  • Litigation Under 42 USC §1983
    • Claims Against State and Local Officials
    • Statutory Fees Provision Brings the Hammer
  • Other Options Under State Law

Faculty:

  • Matt Adams (DL), Conference Program Committee, Seattle, WA
  • Munmeeth K. Soni, Los Angeles, CA
  • Trina Realmuto, Brookline, MA


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Session Link: https://zoom.us/j/94032987019

11:50 am – 1:00 pm Virtual Lunch Break

IMMIGRATION LAWYERS AND MOVEMENTS FOR IMMIGRANT JUSTICE: MUTUAL BENEFITS AND ETHICAL CONSIDERATIONS

Increasingly, immigration lawyers are interacting with community organizations and broader movements for immigrant justice—e.g., deportation defense campaigns, community education efforts, and bond funds.

Our expert panel of immigration lawyers and advocates will highlight the benefits that flow from such collaboration and offer examples of how federal court litigation has supported the immigrant justice movement. They also will explore the ethical tensions that can arise when lawyers seek to incorporate movement lawyering approaches in their practices, including confidentiality, client decision making, and speaking to the media.

  • Movement Lawyering 101: What Does It Mean to Be an Immigration Lawyer Who Works with Community Organizations and Immigrant Justice Movements?
  • Federal Court Litigation: How Has It Furthered the Goals of the Immigrant Justice Movement?
  • Ethical Dimensions (and Dilemmas) of Movement Lawyering

Faculty:

  • Jennifer L. Koh (DL), Conference Program Committee, Malibu, CA
  • Guerline M. Jozef, Executive Director, Haitian Bridge Alliance, San Diego, CA
  • Rex Chen, AILA Federal Court Litigation Section Steering Committee, New York, NY
  • Azadeh Shahshahani, Legal & Advocacy Director, Project South, Atlanta, GA


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Session Link: https://zoom.us/j/94986043477

2:00 pm – 2:20 pm Virtual Coffee Break

HABEAS IN PROLONGED DETENTION: LITIGATION STRATEGIES

Noncitizens continue to be detained across the United States in a sprawling network of private and public detention facilities. Our expert panelists will discuss innovative strategies and practical tools to help secure your client’s release, from reinstatement and challenging Post-Order Custody Review (POCR) to overcoming ICE detainers.

  • “To Habeas or Not to Habeas?” When Habeas Becomes Viable
    • INA §235: What Is the Status of Padilla?
    • INA §236(c): What Is Left After Jennings?
    • INA §241: Strategies and Practical Tools
    • ICE Detainers and Right to Release in Federal Criminal Proceedings
    • Ability-to-Pay: Creative Bond Structure and Conditions
    • Habeas Settlement Negotiations in the Prosecutorial Discretion Era

Faculty:

  • Nadia Anguiano-Wehde (DL), AILA Federal Court Litigation Section Steering Committee, Minneapolis, MN
  • Sarah Gillman, New York, NY
  • Judah B. Lakin, Oakland, CA


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Session Link: https://zoom.us/j/91704279308

3:20 pm – 3:40 pm Virtual Coffee Break

APPELLATE PRACTICE REGARDING IMMIGRATION AND CRIMES, CIRCA 2021

The one thing U.S. Supreme Court Justices John Stevens and Samuel Alito could agree upon in Padilla v. Kentucky (2010) was that the immigration consequences of crime are frequently unclear. The 2020 Supreme Court term did bring some helpful clarity to the scope of crimes of violence in Borden v. United States, but with that came troubling limitations on establishing eligibility for relief in Pereida v. Wilkinson.

The panelists will discuss cutting-edge techniques on how to frame next-generation legal theories at the circuit court level defending against deportability and capturing all possible relief for current and former clients.

  • Distinguishing the Categorical Approaches and the Role of the “Realistic Probability” Test
  • Post-Pereida: Rethinking Ambiguous Convictions and Burdens of Proof
  • Circuit Challenges to State Court Post-Conviction Relief
  • Pushing the Limits of Retroactivity
  • Cases to Watch: Circuit Splits, Emerging Defenses, and Theories to Preserve for the 2021 Term and Beyond

Faculty:

  • Mary E. Kramer (DL), AILA Author, Immigration Consequences of Criminal Activity, 8th Ed., Miami, FL
  • Jeremy L. McKinney, AILA President-Elect, Greensboro, NC
  • Maria E. Andrade, Boise, ID


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Session Link: https://zoom.us/j/93693068854

4:40 pm – 5:00 pm Virtual Coffee Break

ASYLUM, WITHHOLDING OF REMOVAL, AND CAT IN THE POST-TRUMP ERA

The Migrant Protection Protocols (MPP) may be over, but advocacy is still ongoing. In addition to an overview of federal litigation, the panelists will discuss changes in asylum law by the current administration.

They also will explore the new opportunities available to asylum seekers post-MPP, including a discussion on the most recent vacated decisions of the attorney general (AG) in Matter of A–B– and Matter of L–E–A–, and how these impact practitioners.

  • Overview of the Mendez Rojas Settlement Agreement
  • Post-MPP Advocacy: Opportunities and Strategy for Rescission of In Absentia Orders
  • Litigating Social Group Theories Post-AG Decisions in Matter of A–B– and Matter of L–E–A–
  • Reviewability of Adverse Credibility Determinations
  • Nonstate Actors, Color of Law, and Deferral of Removal Under the U.N. Convention Against Torture (CAT)

Faculty:

  • Christine Lin (DL), San Francisco, CA
  • Amanda Waterhouse, AILA Federal Court Litigation Section Steering Committee Vice Chair/High Impact Litigation Committee, Houston, TX
  • Victoria Neilson, AILA Asylum and Refugee Committee Co-Chair, Pleasantville, NY


Join Meeting

Session Link: https://zoom.us/j/98539054818

Thank You to All the Volunteers Who Make the Federal Court Removal Litigation Track Possible

Conference Program Committee

  • Michael S. Vastine, Conference Program Chair, Miami Gardens, FL
  • Maria T. Baldini-Potermin, AILA Federal Court Litigation Section Steering Committee, Chicago, IL
  • Olsa Alikaj-Cano, AILA EOIR-ICE Joint Committee, Houston, TX
  • Matt Adams, Seattle, WA
  • Raymond R. Bolourtchi, St. Louis, MO
  • Jennifer L. Koh, Malibu, CA
  • Kristin Macleod-Ball, Brookline, MA

Track 2: Federal Court Business Litigation Track

schedule iconMonday, October 11, 2021

*Note: All Times Indicated Below Are Pacific Time

WELCOME AND REMARKS

H. Ronald Klasko, AILA Past President/High Impact Litigation Committee Chair/Conference Chair, Philadelphia, PA


Join Meeting

Session Link: https://zoom.us/j/98785300530

DEMYSTIFYING LITIGATION: DISCUSSION WITH FIRST-TIME LITIGATORS

Hear from transactional business immigration lawyers who have charged into federal court to fight wrongful denials. The panelists will share their experiences and lessons learned.

  • Problems Encountered
  • “What I Wish I Knew More About When I Started”
  • Who Represented the Government?
  • Ethical Consideration: Is the Client the Employer, Employee, or Both?
  • Resolution of the Case

Faculty:

  • Michael R. Jarecki (DL), AILA Board of Governors/Conference Program Committee, Chicago, IL
  • Lauren McClure, Chicago, IL
  • Zachary Nightingale, San Francisco, CA


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Session Link: https://zoom.us/j/91742814999

8:55 am – 9:05 am Virtual Coffee Break

MANDAMUS: WHEN ALL ELSE FAILS

When adjudication of your petition or application is delayed or the adjudication is unlawfully withheld, you have two choices: do nothing, or file a mandamus action. The panelists will discuss what you need to know to get action through a mandamus complaint in federal court.

  • Venue, Whom to Sue/Serve
  • When Mandamus Is Appropriate and Not Appropriate
  • Mandamus for EAD Delays
  • Mandamus for Consular Delays and Administrative Processing
  • Mandamus vs. §336(b) for Naturalization
  • Overcoming Clients’ Reluctance to Litigate
  • What Is the Attorney’s Ethical Duty to Advise the Client That the Decision May Be Adverse?

Faculty:

  • Tammy Fox-Isicoff (DL), AILA Board of Governors/High Impact Litigation Committee/Conference Program Committee, Miami, FL
  • Brian Scott Green, AILA High Impact Litigation Committee, Littleton, CO
  • Jeffrey A. Devore, Palm Beach Gardens, FL


Join Meeting

Session Link: https://zoom.us/j/92912345592

9:55 am – 10:05 am Virtual Coffee Break

DECLARATORY JUDGEMENT BASICS: TURNING “NO” TO “YES”

Has your client received a denial? If so, often the quickest and most successful strategy to overturn the denial is to file a declaratory judgment complaint. The panelists will explain how this is done and advise on best practices for filing.

  • Standard of Review/Administrative Procedure Act (APA), Exhaustion
  • Venue, Whom to Sue/Serve
  • Contents of the Complaint, How the Litigation Proceeds, Settlement
  • Ethical Considerations
  • Candor to the Tribunal
  • Plaintiff Communication, Authorization, and Written Agreements

Faculty:

  • Scott D. Pollock (DL), AILA High Impact Litigation Committee/Conference Program Committee, Chicago, IL
  • Jonathan Wasden, Burke, VA
  • Gregory Romanovsky, Boston, MA


Join Meeting

Session Link: https://zoom.us/j/93268478272

10:55 am – 11:05 am Virtual Coffee Break

RELIEF: WHAT ARE YOU ASKING THE COURT TO DO?

The agency action (or failure to act) is unlawful, but the judge will want to know what a court order will look like. It is important to think through a number of case outcomes and clearly state everything you want in order to achieve complete relief for your client. The panelists will discuss strategies and provide tips to seek exactly the kind of relief the client wants.

  • Assessing Case Objectives and Outcomes
  • First Relief Option: Ordering the Agency to Act
  • Differences Between Declaratory Relief vs. Injunctive (Prohibitory and/or Mandatory) Relief
  • Second Relief Option: Reverse the Agency Decision on the Merits
  • Third Relief Option: Remand for Further Proceedings
  • Fourth Relief Option: Other Relief (E.g., Attorney Fees, Such Other Relief as the Court Deems Just and Proper)
  • What If the Agency Reopens Sua Sponte and Seeks Remand or Dismissal?
  • Ethical Considerations: Attorney’s Fees, Drafting a Representation Agreement, Structuring Fee Settlements, Etc.

Faculty:

  • Charles H. Kuck (DL), AILA Past President/High Impact Litigation Committee, Atlanta, GA
  • Stephen Manning, Portland, OR
  • Karen C. Tumlin, AILA High Impact Litigation Committee, Los Angeles, CA


Join Meeting

Session Link: https://zoom.us/j/98818118232

11:55 am – 12:05 am Virtual Coffee Break

QUESTIONS AND ANSWERS: OPEN FORUM

Faculty from the morning sessions will participate in an open Q&A session with conference participants.


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Session Link: https://zoom.us/j/98710066588

12:25 pm – 1:10 pm Virtual Lunch Break

LUNCH PANEL: TALES FROM FEDERAL COURT AND AILA LITIGATION UPDATE

Faculty members will share their best and worst experiences in federal court. In addition, AILA Director of Litigation, Jesse Bless, will provide an update on the latest litigation efforts from AILA National.

Faculty:

  • Jesse M. Bless, AILA Director of Litigation, Washington, DC
    (Select Faculty Members)


Join Meeting

Session Link: https://zoom.us/j/96467882299

1:10 pm – 1:20 pm Virtual Coffee Break

OVERCOMING GOVERNMENT MOTIONS TO DISMISS AND CHANGE VENUE

The government has recently become much more aggressive in filing motions to dismiss and motions to change venue, both to discourage litigation and to avoid courts issuing unfavorable decisions on the merits. The panelists will discuss what motions to expect and how to defend against them.

  • Defending Against Motions to Dismiss Challenging Jurisdiction
  • Defending Against Motions to Dismiss Challenging Ripeness and Standing
  • Defending Against Motions to Dismiss Challenging Final Agency Action
  • Defending Against Motions to Change Venue
  • Ethical Issues in Advising Clients

Faculty:

  • H. Ronald Klasko (DL), AILA Past President/High Impact Litigation Committee Chair/Conference Program Chair, Philadelphia, PA
  • Jeff Joseph, AILA Secretary, Denver, CO
  • Kate Melloy Goettel, Legal Director of Litigation, American Immigration Council, Washington, DC


Join Meeting

Session Link: https://zoom.us/j/98784489086

2:10 pm – 2:20 pm Virtual Coffee Break

LET’S GET ETHICAL: ADVERTISING, CHARGING, AND SERVING LITIGANTS ETHICALLY

With the increase in federal court immigration litigation comes a surge of ethics questions related to attracting, signing, and serving clients. The panelists will discuss ethical questions that arise from advertising via social media, flat fee litigation, potential conflicts in group suits, and the baseline for good faith allegations. They will use the ABA’s Model Rules of Professional Conduct as the foundation for the discussion.

  • Is a Tweet, Post, or Online Comment an Advertisement? What Can Attorneys Say or Not Say? Does an Attorney’s Social Media Profile(s) Violate the Advertisement Rules?
  • Refresher on the Rules of Flat Fees: Can Lawyers Declare “No Refunds?” Are Lawyers Required to Record Time for Flat Fee Litigation? When Is Total Fee Unreasonable?
  • How Do Attorneys Protect Themselves If Individuals Provide False Information Through Online Sign-Ups? What Is the Baseline for a Good Faith Investigation of the Allegations in the Complaint?
  • How Do Lawyers Handle Confidentiality, Adverse Interests, and Settlements in Group Suits?

Faculty:

  • Cyrus D. Mehta (DL), AILA Ethics Committee Vice Chair, New York, NY
  • Gregory Howard Siskind, AILA Board of Governors/High Impact Litigation Committee, AILA Author, AILA’s Immigration Law Practice & Procedure Manual, Memphis, TN
  • Bradley B. Banias, AILA High Impact Litigation Committee/Conference Program Committee, Charleston, SC


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Session Link: https://zoom.us/j/97555603383

3:10 pm – 3:20 pm Virtual Coffee Break

IS THE ADMINISTRATIVE RECORD REALLY THE ADMINISTRATIVE RECORD?

Preparing a case for USCIS or another administrative agency should anticipate future litigation by making a strong record. Are you satisfied that you have provided everything that a district court judge needs to decide the case on a motion for summary judgment or after trial? What options exist for supplementing the record?

  • Importance of the Administrative Record (AR), What Should Be Included
  • Challenging the AR, Use of FOIA
  • Is Discovery Available? If So, Under What Circumstances?
  • Factors to Consider When Filing the AR in Advance
  • Is Refiling Preferable to Moving Forward in Court with a Weak AR?
  • Ethical Considerations
    • What to Do: The Government Fails to Send Documents They Are Ethically Obligated to Provide and/or Inadvertently Shares Confidential Documents
    • Filing an APA Case in Lieu of a FOIA to Obtain the Record/Discovery

Faculty:

  • Robert H. Cohen (DL), AILA High Impact Litigation Committee, Columbus, OH
  • Ira J. Kurzban, AILA Author, Kurzban’s Immigration Law Sourcebook/AILA Past President, Miami, FL
  • Anthony Dominguez, Coral Gables, FL


Join Meeting

Session Link: https://zoom.us/j/98395830061

4:10 pm – 4:20 pm Virtual Coffee Break

GETTING IMMEDIATE RELIEF FOR YOUR CLIENT THROUGH A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION

Sometimes a client will lose status or otherwise be prejudiced while a declaratory judgment action is pending. The panelists will discuss the law and practical experiences in obtaining temporary restraining orders (TROs) and preliminary injunctions (PIs) to keep the client in status.

  • Strategic Use of the TRO/PI
  • How and When to File the TRO
  • What Happens After You File?
  • Procedural Aspects Moving from TRO to PI
  • Success in Employment-Based Immigration Cases
  • Ethical Considerations: Filing (to Spur Settlement) When the Harm Is Less Than Irreparable and/or Success Is Unlikely

Faculty:

  • Diane M. Butler (DL), Seattle, WA
  • Mark A. Prada, AILA Federal Court Litigation Section Steering Committee/High Impact Litigation Committee, Miami, FL
  • Jesse M. Bless, AILA Director of Litigation, Washington, DC


Join Meeting

Session Link: https://zoom.us/j/98613903537

5:10 pm – 5:20 pm Virtual Coffee Break

THE IMPACT OF THE U.S. SUPREME COURT DECISION IN KISOR AND NEW SUPREME COURT JUSTICES ON DEFERENCE TO USCIS

While judicial deference to agency decisions has traditionally been a major hurdle to successful federal court litigation, this may be changing. The panelists will explain how the recent U.S. Supreme Court decision in Kisor v. Wilkie may increase chances of successful challenges to agency actions.

  • Chevron Deference for Statutory Interpretation
  • Auer Deference in Regulatory Interpretation
  • What Changed After Kisor?
  • How Deference Affects Employment-Based Cases
  • How Do You Argue Against Agency Claims of Deference?
  • Ethical Consideration: Waiting or Front Running a Supreme Court Decision

Faculty:

  • William A. Stock (DL), AILA Past President/Innovation & Technology Committee Chair/Investment Committee Chair, Philadelphia, PA
  • Paul W. Hughes, Supreme Court and Appellate Practice Group Co-Chair, McDermott Will & Emery LLP, Washington, DC
  • Leslie K. Dellon, Senior Attorney (Business Immigration), American Immigration Council, Washington, DC


Join Meeting

Session Link: https://zoom.us/j/97787110011

QUESTIONS & ANSWERS: OPEN FORUM

Close out the conference with an interactive open forum with the experts. Faculty members will answer questions and provide practical guidance on issues. Attendees will have the opportunity to learn directly, and seek advice, from seasoned litigators.


Join Meeting

Session Link: https://zoom.us/j/98426637246

Thank You to All the Volunteers Who Make the Federal Court Business Litigation Track Possible

Conference Program Committee

  • H. Ronald Klasko, AILA Past President/High Impact Litigation Committee Chair/Conference Chair, Philadelphia, PA
  • Tammy Fox-Isicoff, AILA Board of Governors/High Impact Litigation Committee, Miami, FL
  • Michael R. Jarecki, AILA Board of Governors, Chicago, IL
  • Bradley B. Banias, AILA High Impact Litigation Committee, Charleston, SC
  • Scott D. Pollock, AILA High Impact Litigation Committee, Chicago, IL

AILA Virtual Meeting Code of Conduct

AILA is committed to providing a professional and productive learning environment for all participants and staff. As a result, all participants are expected to follow all stated meeting and event instructions and guidelines in order to maintain an atmosphere of professionalism, mutual respect, and collegiality. AILA members in particular are expected to adhere to the principles set forth in AILA’s civility code. The guidelines herein apply to all AILA virtual, webcast and online programming including but not limited to AILA conferences, seminars, online courses and roundtables.

All participants must comply with the following guidelines to participate in the virtual meeting and events:

– All participants are expected to maintain a professional and civil discourse throughout AILA’s virtual meeting and event space. Participants are prohibited from using any defamatory, abusive, profane, discriminatory, harassing, threatening, and/or offensive language during the sessions or events including but not limited to Q&A, chat rooms or any activity that takes place in the virtual space.

– All participants must comply with the instructions of the moderators and/or any virtual event staff.

– Disruption of sessions, events or any activity that takes place in the virtual space is prohibited.

– Presentations, postings, and messages should not contain promotional materials, special offers, job offers, product announcements, or solicitation for services unless preapproved by AILA. AILA reserves the right to remove any such communications that have not been preapproved.

– Participants may not record, transmit, copy, or take screen shots of any sessions or events including but not limited to Q&A, chat rooms or any activity that takes place in the virtual space.

Participants who do not comply or are in violation of any of AILA’s virtual meeting guidelines may be denied further access and participation at the discretion of event organizers. AILA is not responsible for reimbursement or refund if you are denied access or participation due to violation of AILA’s Virtual Meeting Code of Conduct.

Participants can contact conferences@aila.org with any questions or concerns related to AILA’s Virtual Meeting Code of Conduct.

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The speaker’s/author’s views do not necessarily represent the views of AILA, nor do they constitute legal advice or representation. Practice tips provided are based on the speaker’s/author’s experiences and the current state of the law. Please be sure to conduct legal research and analysis for your unique situation as the law changes quickly and experiences may differ from your own.

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