Immigration Litigation Basics: the Anatomy of Defense

image of American flag and gavel

When you file suit in federal district court,

do you know who is on the other end of the complaint?  If you answered “the government,” you are right, but also very, very wrong.

by Bradley Banias

Knowing what offices and divisions within those offices will be handling the defense of your case will allow you to prepare your client’s expectations, reach out to the defense attorneys before an initial response is filed, and build relationships with those attorneys.  Below is a summary of the offices, divisions, and agencies involved in typical mandamus suits, naturalization/citizenship denials, visa denials, and habeas proceedings.

 

United States Attorney’s Office

The first attorney to see your complaint will be an attorney at the local United States Attorney’s Office.  Specifically, your complaint is likely to first go to the chief of the civil division within the United States Attorney’s Office.  Because all of the suits you will file will be civil in nature — even habeas petitions — you should not be dealing with any Assistant United States Attorneys in the criminal division, though typically the criminal division outnumbers the civil division of most United States Attorney’s Offices.  But I digress.  Once the civil chief gets the case, he or she will assign it to an Assistant United States Attorney in the civil division.  In some United States Attorney’s Offices all of the immigration cases go to a particular Assistant United States Attorney.  In others, they go to anyone in the civil division.  It should also be noted that the civil division may be divided into affirmative and defensive sections.

Office of Immigration Litigation – District Court Section

Likely, the next attorney to see your complaint will be an assistant director within the Office of Immigration Litigation – District Court Section.  Typically referred to as OIL-DCS, this office is part of the Civil Division of the United States Department of Justice.  It is based out of Washington, DC.  You can find their public website here.  OIL-DCS handles all immigration related cases that originally arise in United States District Courts.

It is important to note that OIL-DCS is a different office with a different management structure, different director, and different practice area than the Office of Immigration Litigation – Appellate Section.  OIL-Appellate defends the government in all petitions for review filed in United States Circuit Courts.  Their public website is here.

Agency Counsel

The final attorney who will be handling your complaint is the agency counsel for the agency you sued.  In district court immigration litigation, agency counsel acts as the liaison between the litigating attorneys — the local Assistant United States Attorney and the OIL-DCS Trial Attorney — and the agency.  The agency counsel is typically responsible for gathering the necessary documents, identifying the relevant adjudicators, and considering settlement offers for the agency.  In addition, the agency counsel generally reviews and approves the legal positions the litigating attorneys take.  So, if the agency interprets a specific statute in a specific way, the agency counsel will ensure that the district court filings comport with that interpretation.

Department of Homeland Security seal

Each agency has a different name and structure for their agency counsel.  The Department of Homeland Security provides a quick overview of their legal advisors here.  An overview of the Department of State’s legal counsel is here.  And finally, the Department of Labor’s legal counsel is explained here.

 

The Defense Team

So, when you file a suit, the defense team will include a minimum of three attorneys: the local Assistant United States Attorney, the OIL-DCS Trial Attorney, and the agency counsel.  As a practical matter, either the local Assistant United States Attorney or the OIL-DCS Trial Attorney will be the primary attorney on the case.  When you reach out to those attorneys, ask which attorney will be the primary attorney on the case.

The primary attorney will likely also be the primary contact with the agency counsel.  The agency counsel will not be listed on the pleadings, and the primary attorneys are unlikely to reveal who the agency counsel is on the case.  But if you practice primarily in one district, you probably already know the agency counsel that has jurisdiction over your geographic region.  Because the agency counsel is basically the defendant, you should not reach out to agency counsel about the case; rather, you should only communicate with their attorney — the local Assistant United States Attorney or the OIL-DCS Trial Attorney.  That said, if you have a good relationship with your agency counsel, it will only help your case.

 

Conclusion

 

Knowing who will be defending your case can be crucial.  You will know who to contact if no answer is filed.  You will know who you need to spend time talking with if you want to push settlement.  And as you litigate more, you will learn the different personalities and interests of each member of the defense litigation team.  Thus, it is crucial to know your opponent.