Think Immigration: Sometimes You Have to Take ‘Em to Court

Actions by the second Trump Administration are generating alarming immigration news, with student visa holders and others ending up in immigration detention centers, but litigation strategies that have worked well in previous eras continue to be smart strategies for helping your clients.

Don’t Be Intimidated

The public was surprised by the arrests of former Columbia University graduate student Mahmoud Kahlil and Tufts PhD student Rumeysa Öztürk, especially by the surveillance video of plainclothes officers surrounding Öztürk on the sidewalk in Somerville, Massachusetts. But immigration attorneys know that these cases reflect tried-and-true Immigration and Customs Enforcement (ICE) tactics. Making an arrest as someone is walking to work? ICE does it all the time. Moving someone to an immigration detention center in Louisiana? Not abnormal. What’s new is the population being targeted and the legal rationale.

We are seeing a shift to targeting those who are here on a student visa, who have likely maintained their legal status under those student visas. Kahlil was a former student with a green card at the time of his arrest, although it’s unclear if the agents initially knew that. The theme running through these arrests is the Secretary of State’s apparent position that political speech, whether it be drafting an op-ed or being present at a rally, is sufficient to find that you are engaged in damaging foreign policy.

That you can be deported for your speech is a very alarming First Amendment position to take. As a lawyer disputing such an arrest, you are saying the government is doing something wrong, so you will have to challenge that idea. That can be intimidating.

Litigation-based victories don’t always need to overturn the government’s rationale. Even if it doesn’t, creative litigation can still help your individual client.

What Does a Win Look Like?

Many wins happen specifically because the government wants to avoid setting a precedent. For example, delay litigation, which makes up maybe 90 percent of filings, is centered on statutes that require officials to do certain things in a reasonable amount of time. Challenging a delay in USCIS processing time as unreasonable can spur an agency to move your client’s case forward, rather than litigate reasonableness.

That can facilitate the action your client needs, while the government avoids what they least want: a judge putting a number on this term, stating, for example, that a two-year delay is unreasonable. After a ruling like that, every delay that drags on for two years and a day would be litigated as unreasonable. Administration officials want to avoid the flood of cases that would come from spelling out such a clear-cut cause of action.

How Do I Get Started If I’ve Never Litigated a Case Like This?

First of all, do not be afraid of immigration litigation. There is good work to be done, and if you keep your eyes open, you will see a case that will benefit from litigation.

Remember, you don’t have to go it alone. Seek out a mentor in the AILA membership directory and join AILA’s Federal Court Litigation Section. Immigration attorneys are generally supportive of each other. That was my experience as a newbie, and I hope that I, and others, are paying that forward. The 2025 AILA Annual Conference and events organized by your local chapter are both great places to connect with seasoned litigators, as are events that specifically focus on litigation, like the upcoming AILA Federal Court Conference.

You don’t have to start from scratch, either. AILA’s Litigation Resource Center has collections of sample briefs, pleadings, and motions, and the Federal District Court Litigation Online Course can orient you to the field. You can also find essential guidance and reference information in Litigating Immigration Cases in Federal Court and Kurzban's Immigration Law Sourcebook.

Begin with something routine and unsensational. Most people get their feet wet with delay litigation in the business world. Then you can tackle more and more complicated cases. You can find the fundamentals (drafts, who to serve, how long they have to respond, etc.) in AILA’s Benefits Litigation Toolbox for Business Practitioners.

What If I Lose my Case?

First of all, if you lose, you can immediately get to work on an appeal.

A loss in litigation can also help you gather information. You may walk away with a better understanding of what the government believes about your client. Disabusing an agency of a mistaken impression may be difficult, but it’s better to know what assumptions they are operating under.

Setbacks can sometimes uncover new information about ICE practices. This could give you insights to help your other clients, or even lead to you challenging specific tactics.

Of course, we often learn the most from losing. While it may not immediately help your current client, taking stock of what you would do differently can drive your professional growth and make you a more effective immigration attorney in the future.

The bottom line: federal litigation is not something scary to avoid, regardless of the day’s immigration news. AILA members should embrace it as an essential tool to help your clients and to help you grow as a lawyer.