James Pittman: Welcome to Immigration Uncovered, the Docketwise video podcast where we dive deep into the dynamic world of immigration law, shedding light on the latest developments, cutting edge practice management strategies, and the transformative impact of legal technology. I'm thrilled to be your host on this exciting journey as we empower immigration practitioners invaluable insights and explore the intricate intersection of law and society. This is episode eleven. And our guest today is Attorney Joseph Gentilly. Mr. Gentilly practices in New York State and he is a founding member of Seraf and Gentilly the law firm. Joseph, thank you so much for joining us. Please introduce yourself. Tell our listeners about your background and your journey to becoming a partner at your current firm.

Joseph Gentile: Sure. Thanks for having me on, James. I really appreciate it. And you can call me Joe. Pretty much everybody calls me Joe. So we started our firm in 2004, so we've been kicking around for a while. When I was in law school, what I was really focused on doing was securities class actions. I was pretty much obsessed with getting into that area. And so the first firm that I went to out of law school was a securities class action firm. And that's where I met my partner, Ronan Saroth, who we're still partners to today. We were both associates there at the time. And I got it in my head about, I guess it was about seven or eight months into practicing law, that I'm better off doing this at my own, at my own firm rather than continuing at the firm I was at. And so I convinced my partner, who was four or five years ahead of me, of the same thing, and we started Sarof Chimtili. And in the beginning our primary focus was securities class action cases and also ERISA, class action cases. ERISA, for people that don't know, it basically is the law that deals with employee benefits. So at that time, the cases that we were getting into had to do mostly with 401K plans. So stock investments within 401K plans that went south. So that's how we started in 2004.

James Pittman: Excellent. So you're coming at this, you came at this as a federal litigator and then at a certain point it occurred to you that your skill set in court could be used in immigration cases. How did that evolve and how did you first get involved in immigration litigation?

Joseph Gentile: Immigration is something broadly, that has always been kind of in the back of my mind, going way back as something I wanted to get involved with legally. And I didn't for a long time because I didn't really see a role for myself so early in my career when I really didn't understand immigration all that well. I basically said to myself, well, this is all very interesting to me. I'd like to help people in this area, but I don't speak Spanish, so what good am I going to be in this area? And so then I kind of put it out of mind for a while, but it's something that stuck with me over the years, and I started looking at it again seriously during the Trump administration because I had noticed at that time that litigation was starting to play a more prominent role in immigration practice. And even after I kind of got the idea, okay, you don't necessarily have to speak Spanish to be an immigration lawyer, I was of the sense of, what do I really have to add here that's not already in the field? I really don't have any competitive advantage here for petitions based practice. But once litigation became more prominent under Trump or under the Trump administration, that's when I saw something that I thought potentially could contribute, because most people in the immigration space, if they're going to do litigation, they come to it initially as a petitions attorney and then kind of get into litigation. And I came in from the reverse. So I like to think that at least for the federal litigation portion of it, particularly the procedure, and just generally the unwritten parts of how it operates, we're coming to it with a pretty deep well of experience.

James Pittman: I always find it very interesting to talk to people who came to immigration having already developed professional competencies in other areas, and then found a reason or a way to apply those talents in the immigration space. So you mentioned that you were interested in it already, sort of in the background. I'm just curious, what was it that interested you about immigration? But you said you didn't see a role for yourself, but what was your original interest?

Joseph Gentile: It's not so much my family. My family's been in the US at this point for close to 100 years. I was fortunate enough that I grew up with the immigration, the generation that came over to the US. In my case from Italy. My wife is an immigrant. But I think really what kind of kept me in it is that I'm Catholic and part of the Catholic social teaching immigration plays a big role in that. It's a very large focus of the Church. So I think over the years I've probably been somewhat brainwashed by the Church that this is a good area to be into and this is work. I should be using my skills and my talents to try to further. So I think that's played a significant role for me. It's keeping it on my radar.

James Pittman: Got it understood.

James Pittman: Well, could you briefly tell us about the types of immigration cases that your firm currently handles through litigation? And why are these different areas so important?

Joseph Gentile: I would break it down largely to three categories. So we do a lot of work addressing immigration delays, we do a lot of work addressing immigration denials, and then we do some, let's say, immigration adjacent work around the EB Five program. So for those that aren't familiar with it. It's an investor visa program where, depending on the time that you did it and where you're investing, investing between half a million dollars and $1.8 million, if you created certain amount of jobs, then it's a road to a green card. And that's an area where you have people investing large amounts of money that aren't necessarily very familiar with the investment climate and the laws in the United States. And you have a group of people in the real estate industry primarily, but also other industries that are very eager to get their hands on these large sums of money. And it results sometimes in frauds or let's say, people losing money when they were led to believe the investment was something other than it was. And that's an area that we got involved in. And to be honest, it fits very well into our background and experience because it's right at that intersection of securities law and corporate law, litigation and immigration. So by kind of happenstance, we're just very well seated to work on those types of cases.

James Pittman: Well, let's dive into the first of those topics, which is immigration delay litigation. And you actually co authored a book with the title resolving Immigration Delays with Litigation. And you wrote this together with your law partner, Ronan Sarif. Could you share with us the most common reasons for immigration delays that you've encountered?

Joseph Gentile: The reasons are largely mysterious in a lot of ways for a particular person's case. But overall, systemically, I think what we're seeing is USCIS and the consulates just are not adequately staffed to handle the amount of work that they have, and that's resulting in delays throughout the system. There are other sources of delays that aren't necessarily systemic. Such as I still think that there's heightened background checks for people of certain backgrounds, particularly if they're from Muslim majority countries, for instance. Sometimes there's delays that are specific to a consulate. But I think the largest contributing factor that impacts most people is just the overwhelming amount of work to do relative to the amount of resources that the government has put towards doing.

James Pittman: Understood.

James Pittman: Well, I mean, when someone's facing the delay in their immigration case, obviously there are some steps that you have to go through before you can jump right into federal court. So let's talk about that. What do you need to do before you actually can go to court on a delay?

Joseph Gentile: I don't think that there's many steps that you absolutely have to do. I think there are just steps that I would call best practices, and if you can do them, it's better you do than you don't. So some examples of that would be you could request to expedite your case. You could contact the USC Omnudsman. You could write to your local congressperson to ask for help. You could write to your local senator to ask for help. So in my experience, these tactics, they don't work in and of themselves. All that frequently, but they are useful in creating a trail to eventually show a judge that you're doing everything you can to try to help yourself, and it's just not working. So, judge, we need you.

James Pittman: I mean, one of the forms of relief that you might be seeking in federal court would be a rid of mandamus. So can we explain the process of going to court to seek a rid of mandamus and why you would want to do that?

Joseph Gentile: Yeah, so when you're filing a case for a delay, usually you're having two things that you're suing under, and for delay cases, they're largely overlapping with each other, and you're going to have a Rita mandamus, and you're going to have account under the Administrative Procedures Act. And basically what you're saying, you're asking a judge to compel a government worker or government agent to take an action that they owe you a duty to do so they don't owe you an approval. So with a mandamus case, we're not arguing over approval or denial. We're just arguing over we're entitled to an action or decision, period. Whether that could be an interview or it can be a decision. The way that works is you're filing a lawsuit in federal court. If this is something that you're going to want to do, you're probably best helping yourself by hiring an attorney to help you with it, preferably one that's done a rhythm mandamus before, and you're going to have them vet the case. They're going to help you determine whether the delay that you have is reasonable or unreasonable. So if you filed an adjustment of status a month ago and you just really don't feel like waiting, you can't file a mandamus lawsuit and expect a good result if that's the case. So you need somebody to walk through, I guess, different ways to look at the case and see whether the delay is reasonable or not. If it's unreasonable, you're going to have the attorney write a complaint. They're going to file it in federal court. They're going to work with you to select a proper jurisdiction, file it in, they're going to serve the complaint, and then you get the US. Attorney's Office involved, and you're hoping for some action at that point. Once the US. Attorney's office.

James Pittman: Now, who's your opposing party? I mean, who are you serving when you go to federal court?

Joseph Gentile: Well, you're suing the agencies that are involved. You're suing the US. Government. So it could be USCIS, it could be the Department of State. It could be the particular consulate. The cases are almost always going to be defended by well, they're always going to be defended by the US Attorney's Office. The US attorney's office is either going to have one of know staff attorneys defending the case just one of their normal AUSAs, or for cases that are more complex or they deem to be more weighty, they may bring in an attorney from Oil, the Office of Immigration Litigation for the Department of justice, and that's kind of know those are their most experienced immigration litigators.

James Pittman: And when you file your complaint, what sort of record are you going to introduce to the court? What sort of evidence are you producing.

Joseph Gentile: For a delay case? I guess you're introducing probably three categories of evidence. So number one, you want to show how long the delay is. We have filing receipts. We filed our petition on this date. We had an interview on that date. We're still waiting for a decision. You're going to want to show any steps that you took to try to remediate this on your own. Like we discussed, you contacted your local congressperson help, and you're going to want to describe the harm or the hardship that the delay is causing you to the extent that there is one. So if you have, let's say it's the cases related to a delay on an EAD, if you're going to lose your job over this delay or you're not able to take a job, this is something you're going to want to mention as well. So those are really, I think, the three main categories you're going to hit with delays.

James Pittman: Then are we looking at having how many hearings are we typically having in a mandamus action, if all goes well?

Joseph Gentile: None. This is kind of the home run situation. What you're hoping for what you're hoping for is that you file the case, you serve the case. Once you serve the case, the government gets 60 days to respond to the lawsuit. Now, what you've done by serving this lawsuit is prior to you filing the case, the government really had no cost to continue to delay your case, to just have it sit somewhere on the bottom of the pile. Now, by filing the lawsuit, you're imposing a cost on them for waiting if they decide to continue to have your case on the bottom of the pile. Now, when that 60 days is up, an assistant US. Attorney is going to have to show up and fight the case, move to dismiss it. They're going to have to put some time into it. So the idea is that you're going to hope that they're going to take the position of, well, we do have to decide this case eventually. It's going to take somebody at USCIS a half hour of their time to decide this case, or we're going to have the, say, USA spend hours defending this, so let's just decide it and get it done. And that is what they do the majority of the time.

James Pittman: What sort of problems could you conceivably run into for the percentage of time when you don't hit a home run? I mean, what are some of the things that can be adverse in a case like this?

Joseph Gentile: Or are you asking, like, let's assume they don't settle the case and decide.

James Pittman: What happens within 60 days? That's right.

Joseph Gentile: Usually the next step is they're going to file a motion to dismiss. They're going to file something in court that says that even assuming everything you say is true, judge, this case can't succeed, so you need to dismiss it. That is usually the next step. We would oppose that motion to dismiss. And frequently, I mean, if you win on that stage, cases typically settle at that point. Hypothetically, there could be discovery, but that's very rare. And there could be summary judgment, which is basically a mini trial for one of these cases, but also very rare. One of the nice things about mandamus lawsuits is that the stakes are relatively low a lot of times, meaning that if the mandamus case is not successful, there's exceptions to this. But by and large, if the mandamus case is not successful, you simply go back to waiting, and it's as if you haven't I mean, for immigration purposes, it's if you haven't filed the case. So when we're going through the risk analysis for one of these with client, a lot of times it really revolves around how important is the money to them, because that's the biggest thing that they stand to lose if they fight the case and it doesn't work, they're going to be out a certain amount of money.

James Pittman: And these type of actions can be brought against USCIS, against the consulates, or embassies. How about against DOL? There would be no reason why you wouldn't be able for example, suppose you had a perm application pending with the labor department, and they've never made a decision on it long after the stated processing time. I mean, there's nothing stopping you from going and filing a mandamus action against that agency.

Joseph Gentile: The one area where it gets a little dicey as to whether you could do anything with a mandamus lawsuit is anything touching on immigration court and removal proceedings.

James Pittman: Why is that dicey?

Joseph Gentile: Well, because the issue of whether you have standing to bring something in district court at that point becomes questionable. So that's pretty much why a lot of what goes on in removal proceedings or in immigration court, you can't do anything in federal district court with it. Ask her circuit court of appeals. So that's an area where jurisdiction gets a little tricky.

James Pittman: What about if you are in immigration court with proceedings pending, but you're waiting on a delayed, let's say I 130 or I 140, some petition that you filed that's delayed? So you're saying that just the virtue of the fact that the respondent is in removal proceedings could result in the district court ruling that it doesn't have jurisdiction to hear a mandamus action during the time that they're in removal.

Joseph Gentile: So I could tell you, like a scenario that we've worked on that's kind of similar, where you have somebody that's in removal proceedings, and they get married while they're in removal proceedings, and there's an I 130 pending with USCIS that's related to that we've filed and been successful in those scenarios. The government hasn't. I mean, maybe they could, but they haven't argued that you don't have jurisdiction to do this. I think probably the scenario that comes up where I don't think there really is anything we can do is let's say you have an appeal pending in front of the Bia, and the appeal has been pending a long time. I don't know really if there's much we can do in that scenario. I think that's unshaky.

James Pittman: So if you have an I 130 denial, let's say, and you would take your appeal to the Bia, and then the Bia, let's say the Bia is sitting on it for a very long period of time, you're saying probably cannot succeed, going to federal court, seeking a mandamus against the Bia.

Joseph Gentile: Yeah, I don't think so. I think that's pretty shaky. I mean, I'd have to research it more thoroughly, but just as a general principle that's got a lot of thorns to it.

James Pittman: So what are the common types of immigration petitions and applications that you are most often going to court for? The rid of mandamus?

Joseph Gentile: They seem to come in waves. We get a lot of EAD issues, and I think that's because having an EAD is just so critical that even having relatively short delays can really have a negative impact on somebody's life. Your career could get thrown off course pretty easily sometimes depending on how desperately somebody needs to travel. Advanced parole issues, too. AP issues come up. Done a lot with waiting for asylum interviews because there's just such a tremendous group of people that are waiting for 34567 years for an asylum interview that under the current regime, just may never come.

James Pittman: Let me just ask a question before on the asylum interview. That is one which traditionally, even in the best of times, can take a long time to get interviewed. And my understanding is recently it's been really set out very far. So in our current climate, let's say this year, for example, how long would you advise people that they would have to wait for their asylum interview before they should start considering a mandamus?

Joseph Gentile: Say probably three years. Wow, okay, there's no hard and fast rule with it, but three years seems to be kind of a rule of thumb that's being set out there. The reason why these people are stuck in such tremendous delays is because the government instituted this LIFO method last in, first out of how to give asylum interviews. So if you filed an asylum case today, you have a priority to get an interview sooner than somebody that filed five years ago. So the way that shakes, what's the rationale for that? The rationale is the government doesn't want people to come and ask for asylum and think that they could just stay for six years waiting for an interview. So if you're applying for asylum today, they want to prioritize those and get those adjudicated as, I guess, a deterrent to having people bank on there being long delays and getting asylum. So regardless of whether that's a wise strategy or policy or not, the effect of it is that the longer that you're waiting for an interview, the less likely you are to get it. So a person that's at that really long stage of waiting, at least theoretically, as long as there's a lot of people applying for a side of one which doesn't look like it's going to stop anytime soon, they may never get an interview without a mandates lawsuit. So there's been a lot of demand for those cases and then there's just a whole bunch of people that for whatever reason at a consulate, they end up in administrative processing. The reason may not be clear and the duration for which they're in administrative processing could be two weeks or it could be six months. It's just very hard to tell. So we get folks with that pretty frequently.

James Pittman: And let me ask the same question regard to that because I've seen and I've heard of people having really long unreasonable delays at the consulates and embassies and feeling utterly helpless because it can in fact even be hard to contact any of the officials at the consulates or embassy and get any sort of status update. How long would you advise people if they have, let's say, a DS 260 pending at one of the Embassies? How long should they wait if they're an administrative review before going for a mandamus?

Joseph Gentile: I don't really have a rule of thumb with that. I tend to evaluate those a lot of times based off the hardship that the delay is causing. So for instance, if you're in an H one B, you traveled, you're going to get a stamp. If you're out for two months, I'd say file a case. If you're in danger of losing your job because of it, then file it. So I don't have like a hard and fast roll with it, but I'm pretty aggressive, I think, in terms of the time frames that I'd look at for filing on administrative process.

James Pittman: Before we move on to talking about immigration denial challenges, do you want to share any highlights or any really notable cases where you saw the mandamus really achieve a good result for someone in a particular type of case?

Joseph Gentile: I guess there's two broad categories of cases with that that I have found to be particularly rewarding. Let's just say mom or dad is in the US. Spouses overseas with child and they are separated for a very long time and they're waiting a year and a half, whatever it is, to come. If we're able to shortcut that weight using an asylum case and those families can get reunited, that's great. I love those cases, especially with younger children. You miss a year in a younger child's life, it's a big deal. That's really painful for the parents when that's the case. There's also the other genre of cases, I guess, where somebody is on the cusp of losing their job and we're able to step in and not have that happen. And there's a really short time period with which we have to work with to get that done. So those are really rewarding. Just along those lines with the EAD cases, in my experience, and this is anecdotal those tend to settle really fast, much faster than other types, because the total amount of touch time it takes for the government to adjudicate an EAD is something like, I forgot the exact number. It's like twelve minutes or 15 minutes. It's a very short amount of work that they have to do. So when you file those lawsuits and you're giving the government the option of spending 10 hours to do a motion to dismiss, or twelve minutes adjudicate the case, a lot of times they adjudicate those cases really quickly. Those are rewarding from the client's perspective. Sometimes it looks like you're pulled off a miracle with those, how quick they go.

James Pittman: This is really useful information, and I'm sure that as we continue to see large numbers of people, different surges, if you will, at the border, and large numbers of people applying for asylum, this sort of technique is going to become more important than ever. I mean, this is certainly really timely to be thinking about.

James Pittman: Mandanus so let's talk about immigration denial challenges. So it's obviously very disheartening for clients when their petition is denied by USCIS or the other agencies. What are some of the reasons for denials that you've encountered where you've challenged the decision in court?

Joseph Gentile: I mean, it ranges kind of from, let's say we've looked at close calls, we looked at errors that were so egregious that the government was citing somebody else's case in making the decision. We've looked at cases where just all the evidence that was submitted just wasn't considered. The government just kind of focused on certain aspects of what was submitted and what wasn't. I think they generally fall into two categories. So a lot of times, if we're looking at denials that originate out of a consulate or an issue with kind of coming in with the CDP, coming into an airport, let's say you get people making really fast decisions. And it looks to me sometimes like they're just having a bad day and they're just being more harsh than they have to be, or in some cases really can be. And then on the USCIS side, I think either you see a version of incompetence related to what we discussed earlier, not necessarily that the people there don't know what they're doing, but they're overwhelmed in terms of how much work they have to do and how much time they have to do it. So there's just egregious mistakes that can only be chalked up to they're just going too fast, or they're trying to implement something on a policy level that's, let's say, on the border of whether they can or can't do it and maybe they overstand.

James Pittman: To sum up, you can have sort of blatant on your face, on its face, sort of errors by the agency, just flat out mistakes on their face and then errors in weighting the evidence and how much importance to attach to the evidence, or failure to consider the evidence. And then errors in either interpretation of the law or application of the law to the facts. Do I have that right? Yeah.

Joseph Gentile: And in some cases, I think just overstepping their discretion. Particularly you'll see this, I think, more at the consulate level and sometimes with CDK because they are subject to less stringent review.

James Pittman: Well, what would be an example of a blatant abuse of discretion at the consular embassy?

Joseph Gentile: I had one case that just was infuriating where we had a seven year old that was denied the ability to come to the United States on grounds of supporting terrorism. I thought that was just completely absurd and just overset any discretion about can a person support terrorism or not? I don't think a seven year old can.

James Pittman: Okay, all right, a good example.

James Pittman: So let's talk about the mechanics here. Practically speaking, how does one go about challenging an immigration denial in federal court? What do you do? What do you file and so forth.

Joseph Gentile: So I'll break this down into three categories, I guess. So the first category of cases are the majority of USCIS originated denials. So for the majority of USCIS originated denials, the tool that you're going to have to combat the denial is, again, the Administrative Procedures Act. And you have to show that the denial is not just wrong, but that it's arbitrary and capricious. It's a pretty high or for us to get over. And usually the first decision that somebody has to make is are they going to go to the intermediary step of going to the AAO before they file, or are they going to go straight to federal court? Usually you have the option of deciding what you want to do. You don't have to go to the AAO. In most instances, you can just go straight to federal court. I typically advise people to skip the AAO step. In my experience, and just kind of the shared wisdom of other immigration practitioners is that the AAO will frequently vast majority of the time they're going to confirm a denial. It's going to chew up some clock, it's going to take some time. And you're also giving the government the opportunity to deny your case for a different reason or a more fulsome explanation of the original reason. And I think if you have the government caught in a mistake, they did something sloppy, fight them on that mistake. Don't give them a chance to correct the largest exception. I would say that you should go to the AAO first or at least consider it. Is that denial cases fought under the APA are fought on what's called the administrative record. The administrative record is all a judge could consider when they're doing these cases. So you can't bring in any new evidence at that point. Whatever is the history of the case is all a judge has to work with. So if you have something meaningful that you think you can bolster your case with, that was left out, the AAO is your opportunity to put that into the record before going to federal court. So that would be the one instance. Then naturalization denials have their own path. So for naturalization denials, you do have to take that intermediary step. You have to file an N three three six, see how that goes. And then assuming you get a denial there, then you can go to federal court. The naturalization cases have a much more favorable standard that they're decided on for the immigrant. So naturalization cases are decided de novo, which means that the judge is going to look at the evidence fresh. They don't have to basically give any deference to what USCIS has decided on your case. So you don't have that arbitrary capricious standard to get over. You get a de novo look at the case, and you can introduce new evidence. It's more like a normal litigation than an APA litigation.

James Pittman: Let me ask a question. So the arbitrary and capricious standard, like, for example, the I 140, you get the I 140 denied, and you decide whether or not to go to the AAO. Let's say you decide to skip the AO, you're going to go to federal court. Or even if you do go to the AO federal court, they have to apply Chevron deference, right? So is that correct? And then you have to show that the agency decision was arbitrary and capricious.

Joseph Gentile: You have to show that it's arbitrary and capricious. Chevron standard may be going away soon. There's a Supreme Court case where that's on the docket and the expectation is it is going to go away. So it's a separate topic, but it's interesting that I think has the potential to change a lot in immigration litigation in unforeseen ways. But yeah, you're going with that arbitrary and capricious standard. So you can't just show that it was a close call and it bounced the other way. You have to show that they made a flat out error. They didn't consider all the evidence that was put in front of them, or they have their own internal guidelines about how to decide these particular cases and they didn't follow their own guidelines. It's a pretty strict standard against immigrant, but the government does make a lot of mistakes. So these cases, they do frequently resolve pretty favorably for the inputs, right?

James Pittman: So that might be something that practitioners want to really look at. I mean, not to be daunted by just the words arbitrary and capricious, because as a matter of fact, there can be I don't want to call them small errors, but there can be errors that may be being committed routinely, but are nevertheless result in an arbitrary ruling.

Joseph Gentile: Probably the biggest, and this is related, but the biggest, I think hole that we have in litigation is that 485 denials are very difficult to contest. There was a Supreme Court decision, Patel versus the United States that it's a year, two years old, I forgot exactly. But that makes adjustment of status, trying to reverse an adjustment of status denial extremely difficult. The 485 denials are very difficult to contest and then it's just a question of how far down is the case law going to flow on that? So if you have a standalone 130 denial, I think you probably contest it the closer it gets to being bundled with the 485, I think the argument.

James Pittman: Is and the 485 denial being difficult to contest in court, I mean, is that purely an issue of the statute sort of not giving jurisdiction to the court? Or is it because the standard that USCIS uses when denying it is discretionary and it's just hard to show that they abuse their discretion?

Joseph Gentile: The former, but the latter creates a difficult argument for other types of cases. So, like, if you have a national interest waiver, for instance, where you get a denial, the amount of discretion that the government has in deciding something like that creates hurdles.

James Pittman: Okay, so you're drafting up your complaint. Let's go back to our mechanics. So you're drafting up your complaint and you're filing that you're going through the electronic filing system of the Federal District Court. You're filing that you're serving the agency. And then what's going to happen next?

Joseph Gentile: Well, once you have service, the government again gets 60 days to respond to the lawsuit. And within that 60 days, what myself and my partner are going to be doing is we're reaching out to the US attorney's office where we filed it. If we know somebody there already that handles immigration cases, great. If not, we'll try to find somebody to reach out to and we're just trying to see which attorney is assigned to the case. And we want to just let them know that, hey, we're here if you need anything, let us know. And we're going to be checking in with them periodically during that 60 days just to try to have them start the process of checking in with the agency and see if there's anything that can be done. That's largely what we're doing in that 60 day window. But the ball is in the government's court at that point, really, as to what to do or not to do.

James Pittman: Are you going to go through a discovery process? They're going to be deciding these on the administrative record. So there's not really you said you can't introduce anything new, so it doesn't sound like there's really any discovery to do. Well, what happens next? So you're going to go, there's a backdoor discovery.

Joseph Gentile: So one thing we didn't get to is that frequently prior to filing the case, if we have the time, we're going to file FOIA request. So under the Freedom of Information Act, let's say it's a Uscitis denial, we're going to file a FOIA request with USCIS for the a file that usually takes a few weeks to get it. And we're not getting discovery, but we are trying to get some more information than maybe we have before filing to try to use that to bolster the case in some way. So that's the closest thing that we have to discovery, really, in one of those cases that we'll use, arguably.

James Pittman: Understood. And then is there going to be a briefing schedule or have you put all your arguments in the complaint? Are you going to a contested hearing or are you just waiting for a decision?

Joseph Gentile: There'll be a schedule. I mean, there's going to be a motion to dismiss. They're going to file it, we're going to have a chance to oppose it. There may be sur replies. There may be oral argument. So it's basically a stripped down version of a normal litigation. And by stripped down, I mean the discovery portion of it either is not going to exist or it's going to be much, much reduced versus a normal litigation. So it'll proceed as a normal federal litigation. At that point, obviously, no jury trial. There's no trial at the end. Summary judgment is going to be the end of the road.

James Pittman: Then if the ruling is another denial or affirmation of the denial, then you're looking at going up to the circuit court, potentially. Do you do that very often? And if so, well, first of all, do you do that very often?

Joseph Gentile: No, not on an immigration case. There's a really practical reason for that. The practical reason is that's a lot of attorneys fees for the average person to be bearing to do one of these cases. So to get to the point where you're at an appeal, some people do it, but at that point you've filed a complaint, you've gone through a motion to dismiss, you've gone through summary judgment, and then to do an appeal after that. It's starting to get pretty expensive at that point. It's just one of the things that's kind of frustrating about this area. I come from the contingency world, and in the contingency world, we get to operate in fantasy land a little bit on these issues, especially in class actions, because the idea of each of these we don't have to be so conscious about each step that we're taking, how much time is it going to take? And kind of doing some benefit cost analysis with it in that way, because it's basically our time that we're spending. But immigration cases don't go that deep very frequently because the cost is just too much for most people to bear.

James Pittman: Understood.

James Pittman: Do you have any advice for either attorneys who are considering extending their practice to federal court challenge denials or if there's any maybe there's some applicants who might be listening to this podcast. Any advice on people who have gotten a denial decision and are contemplating taking its court of a general nature?

Joseph Gentile: Generally, I would say for the applicants, I would say you're going to want to get those FOIA requests out pretty quickly because that's a bit of a bottleneck and it's going to help the attorney that you're working with to vet your case that much quicker. For the immigration lawyers who are looking to do denial cases I would say two things related to that. Number one, if you're looking to get into immigration litigation if you haven't done much federal litigation or you're looking to start I wouldn't start with denials. I would start with delays. Delay cases are much simpler. They're easier and the stakes of losing generally are lower. So I would start there. I think that's a better area for somebody that's less experienced to start with. If you were to do a denial case I think you'd be better suited to cocounsel with a firm or with an attorney that has some experience doing them. They are more complicated. They take more time. They get posed more frequently. So the procedure is going to be a little more important than it will be in a delay case. The consequences of these cases could be greater too. So I would suggest CoCouncil.

Joseph Gentile: Before we move on, I just wanted to bring up one area of denials where I think there's been some positive news and developments in the past year or so and that's for consular denials. So there's a general principle in the law of consular non reviewability which basically says that if the consular makes a decision with some very narrow exceptions federal court can't review it. So that's the end of the road. That has been the assumption that most immigration lawyers have been working with for a very long time and I think a lot still do today. But the reality is that's starting to change. There was a decision that came out a year ago in the 9th Circuit. I think it's us. Versus Munoz. Which part of the proposition of that case that stands for it's very helpful is that, yes, there's this idea of consular non reviewability. However, if that consulate's decision impacts the constitutional rights of A-U-S. Citizen well, then we need to have due process there. And the flavor of cases where we've successfully challenged consular denials a few of them now is where we have a US. Citizen minor child or a US. Citizen spouse. There's a consular denial and we're arguing that the US. Citizen minor child or spouse is being denied of their constitutional right to liberty because they can't live with mom or dad in the US. So therefore, that consular denial needs to be looked at and the family is owed due process. So those have been successful. So to me, that's a very exciting development in the law because what was once just really a hopeless situation, now there's some hope with those situations, and we've been able to reunite some families that even if this was two years ago, it just won't be possible.

James Pittman: Well, it's great to hear that at least that part of things is moving in the right direction. So, yeah, that's encouraging.

James Pittman: Let's talk about the EP Five investor visa type of cases. So as you mentioned, Joe, the EP Five Investor visa program is an immigration immigrant visa, basically based on a petition by an investor. These are people who are citizens of another country, who have resources, who want to make an investment in a business in the United States. And by going through a petition, if their investment meets certain criteria, they can be accorded an immigrant visa number and apply for an immigrant visa or adjust status in the United States. So what are some of the common problems or challenges that EB Five investors encounter with their investments which might result in them having to go to court?

Joseph Gentile: There's a few. So first they use mandamus lawsuits, just like other petitioners do. Lots of delays in the EB Five process. So they have two steps, two petitions. They have the I 526 and the I 829. Lots of delays in both of them. The 829 cases are very successful in general because unlike most petitions, there's statutory guidelines as to how long the government has to adjudicate them, which they just completely ignore most of the time. So those are great cases. The 526s are much more challenging. The government, for whatever reason, fights those cases pretty frequently. So they have mandavis cases. The next tranche of cases would be in order to successfully get your conditions removed, to successfully win an 829, you need some. For cases that go through a regional center. You need cooperation from the regional center to provide information to satisfy the government that the money was invested where it was supposed to be invested, that the jobs were created, and sometimes for a variety of different reasons. The regional center is not cooperative and doesn't hand over the information on time. And so that's an area sometimes where an attorney will need to get involved to threaten to sue, and then if you need be, sue them to compel them to provide the information. And then the third area is sometimes people don't get their investments back, and they should. The investment money, it was a fraud. It wasn't invested where it was supposed to be invested. It was lost in some sort of reckless way. The money ended up in somebody's they bought a boat instead of invested it. I mean, it's all sorts of things that happen there, and sometimes folks have to resort to lawsuits to try to get their money.

James Pittman: Let's dig into that. How might EB five investors, retrieve their investments, or recoup them when they're facing problems with a project. What sort of case are you filing in fed court?

Joseph Gentile: There's a spectrum here, so sometimes people aren't getting their money back because there's a dispute as to how long they're supposed to wait until they get their money back. The money's there, but there's some dispute over, this was supposed to take through five years and I'm getting my money back. And the project may be saying, no, it's eight years. And then there are those for which the money is just simply they're saying either you're getting ghosted or you're being told that the money is not there. For the ones where we're closer to the spectrum, that it's a disagreement over when you're getting your money back. Those get staged out a little differently. So first you may do a demand, then you may do something called a books and records demand. So this is something that we picked up from our days of securities litigation. You're able to have a company provide you with their financial information, and depending on the state, if you think that there's some evidence that there's mismanagement, you could ask for documents around that, sensitive documents. A lot of times these are not things that companies are eager to give to you. So sometimes you'll be able to have a much better negotiating position if the company knows that they're going to have to give you these potentially embarrassing documents if you're dealing with a fraud. Now what we're looking at is, is there an arbitration clause or an enforceable arbitration clause? And if there is an arbitration clause, does it have some sort of loser pays provision in it? So we're basically trying to size up, can we go to court, do we have to go to arbitration? And if we have to go to arbitration, what's the potential risk for the client? Do they have to potentially pay the other side's attorneys fees, lose? And we're taking it from there. We're looking at what their options are. Collectibility is frequently an issue. So again, the further you move down that fraud spectrum, the more likely it is you're dealing with an entity that's not exactly solid or around for a very long time. So you have to look and see is there an entity to actually collect against. And a lot of times if we're coming up with problems with this, particularly if we're coming up with problems, if, let's say that there's an arbitration clause, it's enforceable, it's got a loser pays provision, all that stuff that makes going after them that way very risky. That's when we probably are going to look more closely at the SEC whistleblower program as something, because regardless of what's in an agreement, the LLC agreement or LLP agreement, you can't foreclose somebody from going to the SEC and filing a tip, and you're not going to get your money back directly by filing an SEC tip. However, if the SEC takes your information, says, yeah, it looks like there's a fraud here, we're going to have an enforcement action. If they do in fact go through with that, then you're entitled to a percentage of what the SEC recovers. And typically, I think it's between 15 and 25%. I may have missed it. I think it's between ten and 25. Usually it comes in around 20, but that number can dwarf the amount of money you invested anyway if it's a large project. So those can be very worthwhile. And also by large, if you have an attorney, you could do those tips anonymously, so you don't have to necessarily be overly concerned about blowback or ruffling feathers or something like that.

James Pittman: Well, my sense is that these EB Five investor visa case water gets a lot deeper than the other types of cases that we were filing. Perhaps this might be an area where you would want to write another book specifically on these types of cases, because I can imagine that there are various types of complaints that you would be filing and probably much more in the way of discovery, probably much more in the way of motion practice. And have you seen these cases go to a full blown trial?

Joseph Gentile: I can't recall off the top of my head a trial with one, but the level of complexity of these is far greater than the other areas of immigration litigation. And also, this may be counterintuitive to a lot of people, in my experience, and I think a lot of people's experience much harder to litigate against well financed private parties than it is to litigate against the government. Litigating against the government, especially in immigration. It's kind of one thing that people are always worried about, is retaliation from the government, that if you sue them in a mandamus case, for instance, they're just going to spitefully deny your case, and they're going to be upset that you sued them. They don't really take it that personally. It's not something it's just business as usual. It's bloodless. It's just a dispute that they have to resolve, and that's it. It's not blood sport. You get into private litigation and you start suing real estate developers. You start suing, let's say, less than scrupulous immigration lawyers, banks, people like this. That gets a lot nastier.

James Pittman: Yeah. That's an in your face air, for sure.

Joseph Gentile: Yeah. So it just has a very different vibe to it. It's a lot more complex, and they're going to throw a lot more junk in your direction in those types of cases than you are in the immigration litigation cases. Probably the biggest benefit for the EB Five stuff is if you can do the case as a class action, the resources that you could bring to bear on those cases from the plaintiff's side are just so much greater than you can in an immigration litigation. Because let's say that I do this case and I partner with another firm. I have to file the case in California, and I'm partnering with California counsel who also has a lot of class action experience. If we know that there's a sizable contingency to chase, the amount of time that we're comfortable putting into the case is pretty high. And also the amount of cash that we're comfortable investing into the case is pretty high. If we think that the risk reward works out and there's a potential payoff in the end. So we can go at those cases with pretty deep resources, which is just a completely different approach and favorable for the investors in that regard.

James Pittman: Perhaps we can have you back another time to talk about a couple of specific scenarios that you've seen with some of these EB Five cases and walk us through the anatomy of a case like that. Because it does sound, as I said, the water gets a lot deeper. It's much more complex. We'd probably need some time for you to really explain that the roadmap of the case start to finish and how to prevail on that.

Joseph Gentile: I did have a piece of advice related to it for other attorneys. For me, the most rewarding things that I've done as a legal professional is things where there's been these intersections of expertise that I've developed over time. So for me, the EB Five stuff is pretty rewarding because I get to bring to bear what I've learned in immigration, what I've learned in securities litigation and just general federal court litigation. And at that intersection, I feel like I have something really unique and kind of special to bring to that space. And I just think for other attorneys over time, if you could develop these areas where you have these kind of unique intersections, whatever it may be for that person, it's just such a bonus and such a selling point for their career. I think it's something really worth pursuing because that's where you really start to get unique capabilities. There's a lot of people like, for me, there's a lot of people that do securities class action. There's a lot of immigration lawyers, there's a lot of federal litigators, but there's not many people that are at the intersection of all three. And I didn't do that intentionally. It's just how my interest kind of took me over time. But I think that's something good, especially for an area like immigration, because I think immigration really lends itself very well in a petitions based practice. There's so many different areas of intersection that people could carve out these little niches that they're really just a category of wanted.

James Pittman: Yeah, Joseph, you're making an important point, and it's one that we make often, which is both from a standpoint of developing a passion and using your capabilities to the utmost to develop a specific niche or niche. And also from a branding perspective, it's also important. So it's both important, and you should come to it organically, right? Possible. And from a branding perspective, distinguishing yourself from your competition, there are a lot of immigration attorneys out there's. A lot of attorneys out there. What is it that's unique about you? You want to be known as the EB Five Investor Visa Litigation Guy rather than simply Joe Gentelli, immigration lawyer or something like that. So it's very important, and it's definitely always worth restating that. But I would perhaps like to at some point have you back and really go more deeply just into the EB Five cases, because it's very interesting. It's an area where there's not a lot of attorneys who are specifically specializing in that. It's a complex area, and from the looks of it, there's no let up in demand for EB Five visas. We've got investors from around the world continuing to want to come to the United States. So it seems like a niche which is going to stay good for a while. So if you're willing, we'd love to have you back.

Joseph Gentile: Thank you. Appreciate that.

James Pittman: Well, we're at the end of the hour. Again, we want to thank attorney Joe Gentilly from sir athen Gentilly, for talking about federal court litigation and immigration law. And please join us again for our next episode of Immigration Uncovered.

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