Federal Court Is Now the Only Referee. And Not Everyone Can Afford a Ticket.

When Congress passes an immigration law, it expects that law to be followed. When an agency issues a policy that contradicts what Congress wrote, there is supposed to be a check. That check is the federal courts.

Right now, that check is the only one working.

Over the past several years, and accelerating sharply in the last several months, DHS has issued policy changes — executive orders, agency memos, guidance documents — that directly contradict statutes Congress enacted and pathways Congress explicitly authorized. The adjustment of status memo tells officers to require "extraordinary circumstances" for a benefit that Congress said shall be available to eligible, admissible applicants. The travel bans and immigrant visa freezes restrict legal immigration pathways in ways that raise serious equal protection concerns. Enforcement priorities have been reversed by memo, not by legislation. The use of notices to appear has expanded dramatically, sweeping in individuals with pending applications for benefits they are legally entitled to pursue.

None of this went through Congress. None of it went through notice-and-comment rulemaking. These are unilateral policy changes that directly contradict what the law says.

This is how APA litigation works, and why it matters.

The Administrative Procedure Act, 5 U.S.C. § 706, gives federal courts the authority to set aside agency action that is arbitrary and capricious, contrary to law, or in excess of statutory authority. When an agency issues a rule or policy that crosses one of those lines, affected parties can challenge it in federal district court. If successful, the court can vacate the policy nationwide — meaning it gets struck down, not just for the individual plaintiff, but for everyone.

That is exactly the framework that matters post-Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), which eliminated Chevron deference. Courts now review agency interpretations of law independently. A USCIS memo that redefines the standard for adjustment of status beyond what INA § 245(a) says faces meaningful judicial scrutiny. Courts will read the statute. Courts will look at fifty-six years of BIA precedent. Courts will ask whether the agency's interpretation is correct, not merely whether it is reasonable.

This is why federal APA litigation is the most powerful tool available right now.

The problem is that federal litigation is expensive. And that creates a two-tiered system.

A complaint in federal district court, properly pleaded with the legal arguments needed to challenge an APA violation, costs money to prepare. Discovery, briefing, and hearings add more. If the case reaches a circuit court — or the Supreme Court — the costs multiply again. Attorney's fees can be recovered in some cases under the Equal Access to Justice Act, but only after the case is won, and only if the government's position was not "substantially justified." In the meantime, someone has to advance the cost.

For a corporate employer sponsoring a high-value employee, that cost is bearable. For an individual employment-based applicant — an engineer, a nurse, a researcher — it may be possible with sacrifice. For a family-based applicant or an individual who came here with little and built something through decades of work, federal litigation may be simply out of reach.

This is not an abstract fairness concern. It is a structural problem that the current wave of unlawful agency action is deliberately exploiting. When you make the only available remedy expensive and legally complex, you effectively deny that remedy to the people least able to fight back. The immigrant who came here on an F-1, transitioned to H-1B, waited years in the visa backlog, and now faces a discretionary I-485 denial — that person's only real remedy may be a federal court challenge. Under Patel v. Garland, 596 U.S. 328 (2022), federal courts cannot review the factual findings underlying a discretionary AOS denial; only pure questions of law and constitutional claims remain reviewable. If they cannot afford that kind of challenge, they may have no effective remedy at all.

Mass action litigation is one answer, but not a complete one.

Class actions and mass actions allow costs to be spread across many plaintiffs. Aggregating clients across similar factual categories to challenge the AOS memo collectively spreads the cost and increases the impact. A single APA challenge that results in a nationwide injunction against PM-602-0199 benefits everyone, not just the named plaintiffs.

But mass action litigation still requires plaintiffs to sign contracts and make payments. Individuals without resources, without attorneys, without documentation of their eligibility — and without English fluency to navigate a federal court system that conducts its proceedings almost entirely in English — cannot simply join a mass action by wishing for it.

Congress authorized these pathways. It should fund their defense.

If Congress passes an immigration statute that creates a right — adjustment of status, work authorization, asylum protection — and an executive agency then issues policy that effectively nullifies that right, Congress should be demanding accountability. Legal aid organizations that provide immigration representation are chronically underfunded. The Equal Access to Justice Act is not always available and is not always sufficient.

The result is a system where the wealthy, the employer-sponsored, and the well-connected can access the federal courts to enforce their legal rights, while everyone else absorbs unlawful agency action without recourse.

That is not equal protection. That is not the rule of law. And it is not what Congress intended when it authorized these immigration pathways in the first place.

Federal court is now the only referee left standing. The question is who can afford a seat in the room.

Michelle Canero is Managing Partner of Canero Fadul Reis PLLC. The firm is actively developing federal APA litigation challenging the USCIS adjustment of status memo. For information about litigation participation: forms.canerofadul.com/242534922407960