The Administrative Procedures Act
The Administrative Procedure Act, also known as the APA, is a law that governs how the government must create regulations. This is the process that an agency must follow when creating regulations. If an agency creates a regulation without following APA, then that regulation can be challenged based on a failure to follow the APA.
Types Of Immigration-Related Claims That Can Be Brought Under The APA
There would not be an argument that they got your specific case wrong. It has to be that the regulation itself was created incorrectly.
Typically, this happens when they’ve rushed something through, and didn’t allow for appropriate public comments. It’s not something that is going to be clear from the details of your case, but it’s something that I may know about based on the specifics of how a particular regulation was created.
When and Where An APA Suit Is Filed
APA suits are filed in federal court when there is a violation of the APA in the creation of a rule.
The most common reason for this would be that there’s a violation of the notice-and-comment requirements where the public has to be told about a proposed regulation and allowed to comment on it. If they were not given that, then it can be a basis for invalidating the rule.
Another basis can be that it’s arbitrary and capricious, which is pretty difficult to prove because agencies do get a lot of deference from the courts. But if it’s a crazy decision, then that is a basis for the regulation being invalidated. Another reason is if the regulation violates a law passed by Congress.
There can be an unreasonable delay in creating a regulation or taking action. A challenge to some of the delays with processing work permits is currently pending. That is unreasonable because everyone is facing unreasonable delays.
Bringing An APA Suit
Anyone who is affected by an unlawful regulation can bring an APA suit. I don’t just mean a regulation that violates the law, but it could violate the APA in some way.
Possible Defendants Named in An APA Suit
The government agency that created the regulation must be named as a Defendant. Sometimes there may be multiple defendants possible. The agency that created the regulations (and therefore violated the APA) is named as the Defendant, but multiple agencies may be involved in the enforcement of the regulation, and you would want to include them all if they are relevant to how the regulation is being enforced in your case.
Court Ordered Relief In An APA Suit
The court can invalidate any regulation that was created unlawfully. If that regulation is what’s causing problems for your case, then that would solve whatever problem that regulation created.
To be clear, the court would not order the immigration authorities to grant you the specific thing that you’re applying for, but if the regulation is the only thing standing in your way, then they would ultimately have to give it to you.
Attorney Skills And Qualifications Needed To Handle Immigration Cases
Legally, any immigration attorney could take on an APA case. However, I would be careful and assess whether the person has the competence to do it as it’s not a remedy that’s going to be available in every case. It is something that’s only going to be there when there is a defect in the process of creating a regulation.
The attorney is going to have to be someone knowledgeable about APA Law and how it’s going to impact your case. It is possible that you could bring an APA challenge and win, but still lose your case if the bad regulation is not the only thing that’s standing between you and success.
I have a lot of experience handling very complex cases. I know the details of the law and am comfortable operating in a complex legal environment.
For more information on the Administrative Procedure Act In Immigration Context, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (617) 297-7502 today.