Our Story (long)

There's a topic I've thought about writing for a long time, but haven't done so out of hesitation. Hesitation because it's too personal and involves another person, namely my wonderful wife. I've struggled with this for a while, because the story is actually quite an amazing one, involving events that struck at the very heart of who I am in not only as a husband, but as an attorney and litigator. She gave me permission to write about this some time ago, but even then I hesitated, although I did allude to it in a comment to one of my regular blog reads one day.

I suppose what tipped me over the edge in deciding to write about this is that I really would like to memorialize what happened to the greatest extent possible, before memories fade along with the excitement of what happened. So here's how I ended up fighting the greatest case of my albeit-young career, for the most wonderful client I've ever had or ever will have in the world... the woman I married. Let's call her Julie. (I don't know any real-life Julies and none of my ex's were named Julie so this is a perfectly safe pseudoname for her that should immunize me from sleeping on the couch).

CONTEXT

A little context. Julie is originally from a European country, and regular readers will already know which country that is. She immigrated to the United States as an undergraduate, and I don't want to give out many details so suffice it to say that life played her a rough hand. So rough that through a series of events the US government gave her the right to apply to live here permanently through a special provision of immigration law. Because of the terms of that provision, she would not be allowed to leave the United States for almost a decade after last seeing her home country. She could have left to go back home, but by doing so she would lose the right to *possibly* live here permanently. But she had dreamt all her life of living in America. So she stayed, and waited for her petition to be granted, and missed her home often, but just sucked it in.

The years passed by as Julie continued to wait, and she eventually graduated and got into law school. There she met me, while I was a 3L about to graduate. We dated for a while, but her immigration situation was always a center of attention during our dating relationship. After investing years of time and education into a future life in America, and giving up everything in her homeland, the fear of her losing it all and being sent home was ever-present. And things only got worse as time went on. Her immigration lawyer screwed up her petition, and then screwed it up again. Then, the US immigration agency then known as the INS compounded her lawyer's screw-ups with its own screw-ups.

Soon, she was facing the end of the road and things looked grim. We became engaged, but were advised not to attempt an immigration petition through marriage for various complex reasons relating to her case. It was the ultimate Catch-22. We couldn't do what most other couples in such situations would do to remain together, because it would threaten the possibility of her receiving permanent residence in this country. And yet, her possibility of receiving permanent residence was looking slimmer and slimmer with each passing day. (Note to any immigration practitioner reading this: I'm leaving out many details I know you will think are relevant, just to keep this story somewhat private).

Finally, we were down to the very last month. In a nutshell, the INS had to take certain steps to properly "process" her petition by midnight on a certain date, let's call it the Midnight Deadline, or else she would permanently (yes, permanently) lose her right to live here and everything would be lost. The emotions associated with the powerlessness of such a situation are difficult for me to convey to you. They had to act. Or we and especially she would suffer. And when we tried to apply pressure, the INS responded with typical bureaucratic foot-dragging, apathy, and arrogance. When we pleaded for INS representatives to give us enough notice to allow us to seek other relief in case her petition was denied, they responded, "We will process the application in due course. We will notify you of the results by mail, as we do for all petitioners. Thank you." Notifying us by mail meant, with only a few days left, that we would only find out the results after it was too late to do anything about it. Such arrogance by the INS is common, because they are largely immune from being sued in our court system for any reason by any person, and "aliens" without permanent residence are at the bottom of the pile when it comes to persons with proper standing to sue at all. But she was at the absolute end of the rope.

SUE THE BASTARDS

And so, with only days left before the Midnight Deadline, after a bureaucratic nightmarish hell for Julie that had lasted almost a decade, I sued the bastards. I asked my law firm to donate pro bono attorney-hours of my own time (from my billable requirement) to allow us to take her on as our and my client, which the partners graciously agreed to do. Julie and I spent an entire weekend, non-stop, in the law library poring through and absorbing every single available treatise, law review, handbook and codebook concerning immigration law and civil actions against the United States government. And then, I literally marched into federal district court and slapped the United States government with a federal mandamus action, and a lengthy motion asking for emergency injunctive relief. The named defendants were Homeland Security Chief Tom Ridge, Secretary of State Colin Powell, the local district director of the INS, and the United States of America. Service upon Attorney General John Ashcroft was accomplished through the U.S. Attorney's Office in my city.

It is the understatement of the century to say that all this was intimidating. I was barely a 2nd-year associate and did not practice immigration law, and I had no one holding my hand. The outcome of this case would not merely translate to another win or loss for me; it would profoundly affect my life in addition to the obvious effects on Julie. I also knew that, because of the ticking clock, I couldn't afford to make a single mistake in my legal research or motion-writing. My motion had to be literally air-tight. Any possible defense the government might raise, I had better anticipate it and confront it head-on without requiring the government to raise it first, or else the court may wish to grant the government extra time to respond... which could end up extinguishing Julie's rights forever. It had to be, really, the perfect motion.

After filing the lawsuit and motion, I kept a vigil on my office computer to monitor the federal court's on-line docket system, to see which judge would be assigned. Within hours, I saw his name and it was no one I recognized. A few hours of research provided me with his complete biographical profile, and I was pleased. He was a brand new Bush-appointee who had just been confirmed by the Senate a few months earlier. His academic background was stellar, which suggested to me that he would duly recognize and credit a well-researched and accurate motion on a high-stakes issue such as this. 48 hours later, my heart pounded as a colleague dropped off a fax that had just come in moments earlier. It was a written order in which the judge, let's call him Judge Smith, commanded me and "the United States" to appear before him 24 hours later. I'm not going to pretend this was some Hollywood moment. There was only one phrase going through my mind as I read that order over and over again, addressed to lil' ol' me and the goddamn United States of America: "Holy shit. Holy shit. Holy shit. Holy shit." This phrase was further repeated by Julie when I called to tell her what happened. After years and years of not being able to hold anyone accountable, of wanting to strangle this agency's collective bureaucratic neck, of wanting to scream at the unfairness of it all, it was all coming down to me, Julie, and the United States of America in a single courtroom on a bright and sunny morning the next day. It was now two court days prior to the Midnight Deadline. It was literally now or never.

THE COURTROOM

The tension and anxiety in the air that day was beyond words. I remember every second of that morning from the moment I woke up. The shower I took. Slowly putting on my socks and tying on my favorite tie. The look in Julie's exhausted eyes. (I had spent most of the night practicing my oral argument). Removing a scuff mark on my black shoes. Every step we took as we exited our car in the parking lot, and walked slowly to the grand federal courthouse in our city. Realizing that I'd left my driver's license in the car upon reaching the security guards, who require picture identification of everyone entering, but being waved through anyway by a good-natured guard. Taking the elevator up. And finally, opening the large, beautiful, wooden doors and entering the majestic courtroom of the United States District Court. I had been in federal court before (I clerked there) but Julie had not. It didn't make a difference, because it took our breath away albeit for different reasons.

Enter the United States Attorney. A nice enough fellow. "I have good news," he told us. Apparently the INS was "pretty sure" Julie's petition would be processed by the end of that very day. Not good enough, I told myself. I had reviewed enough case law to know that even with such a promise, if it was not kept, the alien has no recourse and neither does the court. Moreover, I know that both Julie and I thought simultaneously, they had years to do this and even as of the second-to-last day, all they could give us was an indirect "assurance"? Go to hell. Bring on the judge.

Of course, by far the biggest moment of suspense for us was Judge Smith's entrance into the courtroom. Would he be grumpy? Would he glare at me with dirty looks and ask why the hell I was wasting his time with this frivolous crap? Would he be cold and not talk to us, and only issue his ruling in writing days from now?

"All rise!" cried the bailiff. We did. Judge Smith walked in, black robe and all. "Please, be seated folks. Whoops, let me spit out my gum." Those were literally his first words, and yes it's on the record (we purchased the transcript). He then summoned me and the US attorney to the podium.

"Alright folks, let me first say that I have read the entirety of Mr. UCL's motion. I've read a few of the key cases he cited. I have also carefully reviewed the federal statutes at issue in this case. So before getting to you Mr. UCL, let me turn to the United States and ask you counsel, what's going on? What is the reason for this delay in the plaintiff's petition?" The US Attorney then told Judge Smith about the "assurance". Judge Smith turned to me. "What do you think about that? Are you satisfied with the government's assurance?"

"No, your Honor, I'm not. Certainly if it was the word of the US Attorney's Office, I would have no question of their sincerity. But the INS has a documented history of making identical promises in the past, and when the deadline passes, turning around and arguing that they are statutorily barred from processing the petition notwithstanding any equitable considerations. In the Paunescu case, for example...."

At my citation to the Paunescu case, Judge Smith smiled and nodded in agreement (this case was central to my motion), and raised his hand to stop me. He paused for a few moments. He asked me if I was going to be in my office for the rest of that day. Yes I was. He asked for my fax number, which I gave him. Then he asked the US attorney the same question. I kid you not, I actually heard the US attorney begin to mumble the sentence, "Well we normally only provide notice of these decisions by mail..." but his mumbling trailed off and he affirmed that yes, he would be available all day. The judge then began to grill him. "You say the INS expects to be finished by the close of business today?" Yes. "Define 'close of business' counsel." 5 p.m. your Honor. "5 o'clock today and not a minute later, you say?" Yes. Pause for a few more moments. "Here's what I'm going to do. Based on the government's assurance, I order the US Attorney to await written confirmation of the INS' processing Ms. Julie's petition, and immediately fax a copy of that order directly to Mr. UCL's office. Mr. UCL, if you do not receive that order by exactly 5 o'clock today, I'm going to give you a phone number and you call that phone number and leave me a voice message. That will be this court's signal to hold a second emergency hearing first thing tomorrow morning at 9 o'clock, in this courtroom."

Before I could catch my breath, the judge turned to the US Attorney and continued. "Counsel, I realize that you have not been given the chance to file a written response to Mr. UCL's motion, but I mean it when I say I have thoroughly reviewed his arguments, and I frankly don't see any room left for an argument that it should be denied. So when you go back to counsel your client on its next steps, I suggest you inform them of that before we have to come back here again." Yes your Honor. Thank you. Needless to say, I sputtered in my thanks in as well. I guess my motion was air-tight after all.

"All rise!" cried the bailiff. We stood. Judge Smith left the courtroom. Julie and I then walked outside to the corridor, on the way to the elevator. We were trembling with emotion. Julie would later proudly boast to others that I appeared calm and cool as a cucumber during the hearing, but I'm the first to admit that this appearance melted away instantaneously as we walked away from the courtroom. I wanted to grab her and smooch her but with her teeth clenched, she told me, "No. Not yet. Someone might see us. Let's get out of here." When we finally got outside, I simply don't remember if we smooched. I do remember a lot of, "Oh my God. Oh my God. Oh my God" and other senseless babbling. Julie then drove me back to my office, and she went home. Two hours later, I received a phone call from the US Attorney. "You got it. I'm faxing it over right now. Can you call the judge and let him know we're okay?" Minutes later, I saw the fax. Picture images of people in suits jumping up and down and yells and high-fives and hugs by secretaries and colleagues in the office. And then, since I couldn't reach her by phone because she didn't have call waiting at the time and I knew she was on-line, I sent Julie an email. It read, "Welcome to the United States of America. For the rest of your life." She replied in seconds and even though it was an email, I could tell she was simply overwhelmed into a state of shock. It read simply, "No. It's not true." She called me and she meant it; she wasn't just saying it for effect. She literally could not believe that it was all over, and that we had prevailed. "You have a green card sweetheart. Congratulations." "No, I don't. It's impossible." Yes, yes, it's possible and it's reality! Now! "Meeting you was the best thing that's ever happened in my life," she told me. I beamed.

THE AFTERMATH

The celebration didn't end there. After the excitement died down, I filed a petition for an award of attorney fees against the government because its treatment of Julie was not "substantially justified", under the federal Equal Access to Justice Act. The US filed a motion to dismiss on grounds of mootness which I opposed, and Judge Smith denied it on grounds that he retained jurisdiction to decide the issue of attorney fees. The US then called me one fine day, and offered to settle my claim for attorney fees for a certain amount. Neither me nor Julie honestly cared about the actual amount, not only because it was truly the principle we sought to enforce ("the government should pay for being so apathetic and arrogant") but also because frankly, the money would go to my employer which donated my attorney time, and not to me or Julie personally. So I accepted the offer without negotiating further, and in came the check from Washington, D.C. a few weeks later, followed by a second one from the INS itself. The local district director had to pay that second check out of his own local office's budget. Does revenge get any better than that?

Currently, copies of the checks and of Judge Smith's order memorializing all these events are framed and hanging on my office wall. Unfortunately, I have another case pending before Judge Smith with my current firm, so I haven't been able to stop in to his office and chat with him yet. But it is my intention to personally thank him one day, maybe even take him to lunch if he has time, for single-handedly changing our lives forever.

Afterthoughts: The effect of the court's ruling and subsequent approval of Julie's petition was to free her to leave the country, for the first time in 7 years. Within days, we purchased plane tickets to Europe, and I can't tell you how exciting it was to be with her and watch her reaction as we touched ground on her native soil for the first time. That trip was the best reward I could have possibly asked for, not only for all of our hard work but also for Julie's patience with the American justice system. Despite everything that she's been through, you can bet that she loves this country with all of her heart and will become a US citizen in the not-too-distant future.

Afterthoughts 2: For the several individuals from the USCIS offices in Washington, D.C. who have read this post, as apparent from my reader stats, I invite you to email me if you have something to say, good or bad. I'll guard your anonymity if you desire and protect all confidential communications in the same spirit of journalism that any newspaper would. Sorry for calling y'all "bastards." I meant it figuratively of course.

Afterthoughts 3: Unfortunately, this story is real life and not Hollywood, and its ending is not pure roses. About one year after this court hearing took place, my wife began having a workplace affair and I divorced her. We are no longer together. I'm still proud of this story and still consider it my "greatest case". Regardless of what happened between us, Julie was one "client" whose life I changed forever with my lawyering skills and nothing will ever change that.