Voice

April 2014

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Lifestyle 9 What's Trending 9 Inter Alia 9 Get Connected 9 Member Advantage 9 Contact Us sponsor: about us: 6 Practice Pointers w unsolicited advice w the I-9 blog u on the docket w business immigration by Bradley B. Banias P re-suit leers—leers giving notice of possible legal action to potential defendants and their aorneys—are ubiquitous in civil practice, yet they are foreign to immigration practice. Like private civil litigators, the aorneys that defend the relevant agencies in federal court immigration litigation have incentive to avoid litigation if it is in the best interest of their client agency. us, immigration practitioners should consider using pre- suit leers as an alternative tool to address an agency denial or delay. Pros of Pre-Suit Letters First, a pre-suit leer is an opportunity to make your case to the aorney—an Office of Immigration Litigation (OIL) aorney, an Assistant U.S. Aorney (AUSA), or both—who is charged with advising his or her agency clients about the litigation risks associated with a particular denial. Because litigation risks may be specific to a particular district or relate to ongoing litigation, agency adjudicators are likely unaware of such risks. erefore, a pre-suit leer addressed to OIL and the local U.S. Aorney's office may be the first time a decision is reviewed to determine whether it is defensible in a particular jurisdiction, whether it could affect ongoing litigation elsewhere, or whether the agency is even willing to defend its reliance on a sensitive policy. Second, a pre-suit leer has significant practical advantages. It is inexpensive to dra and send. You control the timing by seing a deadline for the government to respond. You can even send a pre-suit leer while you seek other avenues of relief. Most importantly, you waive no other avenue of relief by sending a pre-suit leer. And you control who gets the leer. ird, any response will help you advise your client. Ideally, an OIL aorney or an AUSA will see your leer, agree with your argument, contact agency counsel, and advise them to "make this go away." But lesser responses can be helpful, too. For example, let's say that the government aorney indicates that, regardless of the merits of the decision, the agency's position is that the court lacks jurisdiction to review the decision. is could indicate that the government recognizes the merits of the decision as weak, and that an administrative appeal could be your best course of action. Of course, other inferences could be drawn from such a response, but in a real case, you will have the advantage of actually communicating with the government's aorney and reading between the lines for yourself. Cons of Pre-Suit Letters First, you may get no response, and aempting to read the agency's silence can be dangerous. Second, the agency may use your pre-suit leer to reopen Pre-Suit Letters: An Alternative Option? "You control the timing by setting a deadline for the government to respond. You can even send a pre-suit letter while you seek other avenues of relief. Most importantly, you waive no other avenue of relief by sending a pre-suit letter." Immigration Litigation Toolbox + LOCKER TOOLBOX next uw

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