In a recent federal court case in Seattle, District Judge Ricardo Martinez harshly criticized the USCIS and State Department for manipulating the record and consistently making misrepresentations to the court about the evidence that it considered in a J-1 waiver adjudication. The court awarded over $50,000 in attorney’s fees to Linda Guerra and her husband as a result of the bad faith conduct of USCIS and the Department of State in litigation over the adjudication by CIS and State of her application for a waiver of the J-1 foreign residence requirement. Guerra et al v. USA, No. 09-CV-01027 RSM (W.D. Wash., Oct. 21, 2014).
Guerra initially filed a mandamus action to compel adjudication of her I-612 hardship waiver, which was stuck in the “apathetic talons of the SF Asylum Office.” She later amended her complaint to bring an APA challenge to the adjudication of that waiver by CIS and State without consideration of all the record evidence. The case ultimately settled when CIS agreed to reopen her asylum denial and grant asylum relief, rather than NACARA derivative status as initially sought.
Normally attorneys fees are awarded in immigration litigation pursuant to the Equal Access to Justice Act (EAJA), but here plaintiffs sought fees based on the bad faith litigation conduct of the government agencies. Guerra was not a prevailing party for EAJA purposes as there was no dispositive court order as to her waiver claim. The court can consider prelitigation misconduct as reflective of a pattern of misconduct that continued throughout the litigation.
The Court’s fees award chronicled the ongoing misconduct of USCIS and the State Department, including affirmative refusal of the CIS Asylum Office to transfer the waiver application to the CIS California Service Center despite over a dozen requests; the denial of her asylum application based on interview no-show without informing Guerra that her continuance request had been denied; service of a Notice to Appear for removal proceedings (NTA) on Guerra without informing her prior to the hearing date that CIS had never taken the steps to schedule a hearing with the court; reckless rendering of the I-612 waiver decision by CIS without considering the record evidence and erroneously identifying her as Chinese, misrepresenting her entry date, and wrongly asserting that she had filed no medical evidence of hardship.
Notably the Court found defendants’ conduct went beyond mere recklessness since it also “exhibited an improper purpose to manipulate the record and abuse the judicial process” by substituting a revised waiver decision (for the erroneous decision) in the administrative record without timely service on the court or plaintiffs. The Court had earlier ordered Defendants to submit a complete Administrative Record including all materials directly or indirectly considered by agency decision makers, including those adverse to the agency’s position.
Defendants were found to have “consistently misrepresented to the court and to the Plaintiffs the scope of evidence considered by USCIS and by the Department of State in adjudicating Ms. Guerra’s hardship waiver.” Two declarations were filed by State and USCIS which the court found to be “misleading” in that the DOS administrative record included only a small portion of the record that CIS purportedly forwarded to DOS, despite assertions to the contrary in declarations. “This vast discrepancy between the USCIS and DOS records suggests that Defendants either willfully misled the Court as to the scope of evidence considered by DOS through sworn affidavits or hampered enforcement of the Court’s Order to supplement the record with all materials directly or indirectly considered by the agency.”
The Court also chastised the DOS for “patent shifting of litigation positions” concerning whether State routinely considers the weight of hardship evidence. The Court found this to be an abuse of the judicial process and manifested an intent to mislead Plaintiffs and the Court.
The Court ultimately concluded that the totality of the circumstances prior to and during the litigation demonstrated Defendants’ bad faith conduct “impaired the integrity of the judicial process while causing repeated and needless delays in the adjudication of Ms. Guerra’s applications,” as well as exacerbating her husband’s medical condition.
Guerra and her husband were represented by GHP attorneys Neha Vyas and Robert Gibbs.
