In May 2018, a non-citizen seeking immigration relief submitted a complaint against his attorney to Executive Office of Immigration Review (“EOIR”). He alleged that his attorney had charged him $10,000 a year to handle his case, begun immigration proceedings without his consent, and forged his name on various legal documents. Now, almost four years later, EOIR has yet to determine, even preliminarily, the validity of the complainant’s allegations. The Ninth Circuit recently held, in Vaz v. Neal, that EOIR’s failure to initiate and complete its preliminary investigation of the complaint could not be considered “unreasonably delayed,” give the extent of the EOIR’s backlog of misconduct complaints. This post discusses the Ninth Circuit’s decision.
EOIR regulates the conduct of attorneys and other representatives who practice before the Board of Immigration Appeals (“BIA”) and the immigration courts. Concomitantly, EOIR maintains an Attorney Discipline Program, to recommend professional discipline for immigration representatives who violate EOIR’s standards of professional conduct. The recommendations go to the BIA.
As part of the Attorney Discipline Program, individuals can submit complaints about their attorney’s conduct, which the EOIR investigates. See, 8 C.F.R. § 1003.104. EOIR’s “Fact Sheet” regarding its Attorney Discipline Program and Professional Conduct Rules for Immigration Attorneys and Representatives can be found here. The Fact Sheet notes that in June 2000, EOIR implemented a regulation entitled Professional Conduct for Practitioners – Rules and Procedures, “to protect the public, preserve the integrity of immigration proceedings and adjudications, and maintain high professional standards among immigration practitioners.”
As might be expected, EOIR receives a sizable number of complaints. For example, in 2018 and 2019, EOIR received approximately 579 and 684 complaints respectively. As also might be expected, the staffing of the Attorney Discipline Program is quite meager. EOIR’s Disciplinary Counsel is assisted by one attorney (an Assistant Disciplinary Counsel) and one investigator. As a result, as of June 2020, the EOIR was still processing complaints from 2017. It was into this maelstrom of complaints awaiting attention that Prymas Nazreth Vaz’s complaint was submitted.
Vaz alleged that from about 2006 to 2016, he paid his attorney about $10,000 each year to handle his immigration case. During this time, according to Vaz’s allegations, the attorney failed to update Vaz on the status of his case, started immigration proceedings on Vaz’s behalf without authorization, and forged Vaz’s signature on various documents.
The Disciplinary Counsel’s Office (“the DCO”) determined that Vaz’s complaint warranted further review, and notified Vaz that it would begin a preliminary investigation and inform him of the results. Though the DCO generally addresses complaints in the order received, it does expedite some, usually according priority to complaints “involving egregious conduct or practitioners who are the subject of multiple complaints.” The DCO decided that it would address Vaz’s complaint “in the order it was received and as resources permit,” and not accord his complaint priority (i.e., expedited treatment). The DCO’s decision not to do so was partially based on the California Bar’s dismissal of Vaz’s complaint to it due to “insufficient evidence.”
About two years after Vaz filed his complaint with the EOIR, he decided he had waited long enough; he sued the EOIR in District Court for failing to provide him with any updates or inform him of the results of its investigation. Digressing to the current day, as of now, May 2022, the DCO’s preliminary investigation apparently remains incomplete. At oral argument before the Ninth Circuit panel, on March 16, 2022, EOIR reported that it had begun working on Vaz’s complaint.
The District Court dismissed Vaz’s lawsuit for lack of subject matter jurisdiction, concluding that neither the Mandamus Act nor the Administrative Procedure Act (“APA”) conferred jurisdiction on the Court. The Court also held that even were jurisdiction present Vaz could not prevail. Converting the EOIR’s motion to dismiss into a motion for summary judgment, which allowed it to consider a declaration filed by EOIR, the District Court held that EOIR’s delay was not unreasonable, given the Attorney Disciplinary Program’s limited resources.
The Ninth Circuit’s Decision
The Ninth Circuit panel held that the District Court possessed subject matter jurisdiction over Vaz’s claim that EOIR had unreasonably delayed investigating his complaint, and that Vaz had stated a cause of action. However, the panel concluded, his claim of unreasonable delay was unwarranted on the facts.
First, the panel explained, subject matter jurisdiction over an APA claim rests on the federal question statute, 28 U.S.C. § 1331. Vaz v. Neal, supra, slip op. at 8 (citing Plaskett v. Wormuth, 18 F.4th 1072, 1082 & n.5 (9th Cir. 2021). Given Vaz’s allegation that EOIR failed to perform mandatory duties specified by federal regulation, his suit arose under the laws of the United States.
Second, Vaz’s APA claim was properly grounded on 5 U.S.C. § 706(1), which provides that a court may “compel agency action . . . unreasonably delayed.” Citing Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64 (2004), and Plaskett v. Wormuth, supra, the panel explained that “a court may compel agency action under the APA when the agency (1) has ‘a clear, certain, and mandatory duty,’ and (2) has unreasonably delayed in performing such duty.” Vaz v. Neal, supra, slip op. at 9 (citations omitted).
The Court held that Vaz had identified such a mandatory duty, imposed by 8 C.F.R. § 1003.104(b). That section provides:
Preliminary inquiry. Upon receipt of a disciplinary complaint or on its own initiative, the EOIR disciplinary counsel will initiate a preliminary inquiry. . . . If the EOIR disciplinary counsel determines that a complaint is without merit, no further action will be taken. The EOIR disciplinary counsel may, in the disciplinary counsel’s discretion, close a preliminary inquiry if the complainant fails to comply with reasonable requests for assistance, information, or documentation. The complainant and the practitioner shall be notified of any such determination in writing.
By adopting the regulation, and employing the mandatory term “will,” EOIR had imposed upon itself a mandatory duty to “initiate a preliminary inquiry.” Vaz v. Neal, supra, slip op. at 10.
EOIR argued that it was not obligated to investigate because related regulations granted it broad discretion over “the scope of investigations and what actions it may take after completing an investigation.” Id. (referencing 8 C.F.R. § 1003.104(b) & (c)). But, the panel reasoned, “discretion over how to investigate is different from discretion over whether to investigate.” Id. (emphasis added). It noted that the regulations EOIR cited “neither provide nor suggest that the EOIR has discretion whether to investigate a complaint.” Id.
The panel did agree with EOIR that the DCO had no duty to select Vaz’s complaint for an expedited investigation.
Third, EOIR had no mandatory duty to notify complainants of its investigation results — despite § 1003.104(b)’s last sentence. That sentence provides: “The complainant and the practitioner shall be notified of any such determination in writing.” But, carefully scrutinizing the text, the Court ruled that the complainant was entitled to notification only when EOIR exercised its discretionary authority to close a preliminary inquiry because of a complainant’s failure to provide requested information. Vaz v. Neal, supra, slip op. at 11.
The panel then reached the question of whether EOIR’s had unreasonably delayed investigating Vaz’s complaint. In determining “whether an agency’s delay is unreasonable under the APA,” the Ninth Circuit employs the six-factor balancing test the D.C. Circuit announced in Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 1984) (“TRAC”). In the court’s view only four of the six TRAC factors were relevant:
(1) the time agencies take to make decisions (which is assessed based upon a “rule of reason”;
(3) the extent to which the delay implicates human health and welfare, as opposed to purely economic interests;
(4) the effect of expediting delayed action on agency activities of a higher or competing priority; and
(5) the nature and extent of the interests prejudiced by delay.See, Vaz v. Neal, supra, slip op. at 13-14
The panel observed that the Ninth Circuit considers the first factor the “most important,” but “not itself determinative.” Vaz v. Neal, supra, slip op. at 14 (citing A Community Voice v. EPA, 878 F.3d 779, 786 (9th Cir. 2017)). The Court “assume[d] without deciding that the first factor would weigh in Vaz’s favor.” Id. Really, how could it not? But three other relevant factors favored EOIR and carried the day a matter of law. In the panel’s view, the delay did not affect Vaz’s health or welfare, and was neither causing him harm nor prejudice. With respect to the latter, the panel noted that Vaz could seek judicial relief based upon “his former attorney’s alleged misconduct.” Id.
The fourth factor weighted in favor of EOIR, because “[r]equiring the EOIR to investigate Vaz’s complaint would interfere with the EOIR’s discretion in prioritizing its activities and allocating its resources.” Vaz v. Neal, supra, slip op. at 15.
The Ninth Circuit’s decision is troubling.
First, the quality of representation in immigration cases has been a long-standing, endemic problem. (Granted, many of the sources referenced in the discussion below seem focused on representation in deportation proceedings, and it is unclear just what sort of immigration relief Vaz sought.) The problem of deficient representation is not a problem with the immigration bar as a whole. Nevertheless, a significant subset of immigration lawyers provide poor, and even damaging representation. As one author observed, somewhat matter-of-factly, “[e]very institutional actor in the deportation system is acutely aware of the disproportionate instances of attorney malpractice and misconduct that occur among the immigration bar.” Peter L. Markowitz, Barriers to Representation For Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, 78 FORDHAM L. REV. 541, 551 (2009). Indeed, he continued, “many players in the process see bad lawyering as an inevitable and inalterable feature of the removal system.” Id. at 573.
One major, albeit dated, survey a group of immigration judges suggests the magnitude of the problem. The judges surveyed responded that the legal assistance provided in approximately 33% of the cases before them was inadequate, and in another 14% percent was “grossly inadequate.” Stacy Caplow, et al., Accessing Justice: The Availability And Adequacy Of Counsel In Removal Proceedings, 33 Cardozo L. Rev. 357, 391 (2011-2012). The immigration judges interviewed in a follow-up study identified three primary causes of the incompetent representation they had observed. First, due to the economics of the practice, many perfectly capable practitioners take on more clients than they can competently handle. Second, some attorneys are unscrupulous and take significant fees for pursuing meritless cases. Third, another set of attorneys simply lack the skills or ability to provide competent representation. And clients cannot be expected to police their lawyers. Varick Street Case Study, supra, at 563; Benjamin P. Edwards, The Professional Prospectus: A Call for Effective Professional Disclosure, 74 WASH. & LEE L. REV. 1457, 1505-07 (2017).
A theme that emerged from the Varick Street Case Study was “the lack of effective attorney discipline and oversight mechanisms.” Id. And the EOIR disciplinary process and state bar disciplinary processes are the two primary avenues of potential professional discipline. Varick Street Case Study, supra, at 563; Legal Ethics in Immigration Matters, supra note 2, at 6-9.
Second, the Ninth Circuit may be correct that it dare not re-order the priorities of a clearly understaffed and overburdened EOIR Disciplinary Counsel’s Office. Perhaps the panel quite rightly refused to order the DCO to accord Vaz’s case a higher priority than either the unseen cases to which EOIR had accorded priority status or the ones that had entered the pipeline before Vaz’s. Indeed, while Vaz’s lawsuit focuses on a “delay” in, rather than a “denial” of, enforcement, in some ways this sort of case implicates issues of resource allocation at the heart of “inaction” cases such as Heckler v. Chaney, 470 U.S. 821, 831-32 (1985)(“[t]he agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities”).
But perhaps the panel chose too limited a frame within which to view the case. It treated the size of the DCO staff as a given. Perhaps the broader inquiry should have been whether resources should be reallocated within EOIR, away from some other matters it addresses to attorney discipline. But that inquiry too goes to the problem of the optimal allocation of agency resources, regarding which courts are justifiably chary. And courts can be expected to be particularly cautious with regard to EOIR’s allocation of resources to its Attorney Discipline program, given that the program and the obligation to investigate seems not to be grounded on a statute, but only EOIR’s own regulation.
However, in egregious circumstances a court should arguably focus on whether the extent of the resources devoted to a government obligation are clearly inadequate for the magnitude of the problem the government has undertaken an obligation to address, rather than anticipating the problem of deciding from where the additional resources are to be drawn. And the APA could be viewed as giving the court authority to make such a judgment, which might simply force EOIR, the Justice Department in which it is housed, or Congress to give the matter attention and devote more resources to the attorney discipline function. Perhaps there is no practical non-self-defeating solution, because perhaps a court cannot order the government to devote more resources to policing immigration lawyers’ provision of representation to clients, no matter how pressing the problem. But the problem of policing representation in immigration proceedings might be appropriate for some sort of systemic intervention by the federal courts.
Third, the panel’s judgment regarding the impact of poor representation on immigrants seems seriously flawed. Certainly many denials of immigration relief, such as relief from deportation, can have devastating effects on the welfare of those seeking that relief. As one scholar noted, [t]he gravity of the liberty interest at stake for [immigration claimants] cannot be overstated and has been characterized by the Supreme Court as “banishment.” Varick Street Case Study, supra, at 544 (citing Knauer v. United States, 328 U.S. 654, 676 (1946) (Rutledge, J., dissenting)). Immigration is hardly merely a regime of economic regulation. It can go to “core” issues of entitlement to remain in a country one considers one’s only home, one’s ability to be united with close family members, such as spouses, children, or parents, or freedom for exploitation by employers, criminals, or others aware of one’s tenuous immigration status. These are quite serious matters going to the “welfare,” the mental health, and possibly even the physical health, of those seeking immigration relief. And indeed, the grant of asylum may be a matter of life in the United States or death upon repatriation to the applicants “home” country.
Fourth, unresolved claims of serious misconduct have ramifications for others seeking immigration relief. So long as a misconduct case goes unresolved, other potential clients will have no idea of the existence of a claim of serious misconduct that might be substantiated. If EOIR promptly investigates and recommends discipline, such potential clients, or perhaps their friends, relatives, or advisors, might well become aware of the professional discipline imposed, and seek other representation. So even if Vaz’s particular claim did not involve attorney misconduct that harmed his own welfare or prejudiced his own claim, the alleged misconduct certainly posed the prospect of severe harm to others. The panel appears to have assumed that it could not consider those interests, or that it was otherwise inappropriate to do so — a serious flaw in its opinion.
And indeed, the harm goes deeper than harm to the welfare of other litigants. Attorney incompetence or misconduct undermines the very credibility of and public respect for the immigration court system. See, Fact Sheet, supra, at 1 (standards of practitioner conduct “preserve the integrity of immigration proceedings and adjudications”). If the immigration court system cannot root out elements of the immigration bar that fail to properly represent immigrants, then the court itself and its decisions will come into disrepute. It may come to be viewed as a court in which the results are really determined not by the merits of immigrants’ cases, but by a bizarre sort of lottery, in which the results turn largely on the immigrants’ ability to secure competent representation.
In short, upon further analysis the balance of the TRAC factors seems somewhat different than that which the panel perceived. The first factor, the length of the delay itself clearly quite heavily weights in favor of Vaz, given the now four-year wait for a preliminary assessment of his misconduct allegations. The third factor also weighs heavily in Vaz’s favor; the alleged incompetent, deceitful, and grossly-overpriced legal representation would clearly threaten Vaz’s welfare and most likely the mental health, as well as that of potential other clients represented by Vaz’s ex-lawyer. And while, assuming static resources, imposing a deadline for the consideration and preliminary assessment of Vaz’s complaint may merely rearrange the DCO’s investigative priorities, a more robust, systemic judicial order might not result in disarranging those priorities. Instead, it might spur the dedication of additional resources to address a serious and widespread deficiency in the immigration justice system. Granted a court might consider it imprudent to undertake such an ambitious systemic intervention at the behest of a pro se plaintiff. But it might be perfectly appropriate to undertake such an intervention in a “pattern-and-practice” type of challenge mounted by competent attorneys who could adequately represent the interests of complainants as a class.
Inadequate, incompetent, and overpriced legal representation on immigration matters is a significant problem that undermines the quality of the critical decisions the immigration system is called upon to make. The Ninth Circuit’s opinion, unless read very narrowly to address the specific pro se litigation Vaz initiated, could retard any effort to use litigation to ensure that EOIR devotes adequate resources to investigating complaints of attorney misconduct consonant with the magnitude of the problem.
 It is one of two major mechanisms for the imposition of professional discipline for breach of professional standards in providing representation in BIA and immigration court proceedings. The other is state bar disciplinary proceedings. See Observations, first point, infra.
 The Disciplinary Program’s web page is here. The site contains links to a long list of currently and previously disciplined practitioners here and here. A specialist at the Congressional Research Service also prepared a report describing the program and other institutions seeking to police fraudulent practices and incompetent representation by immigration practitioners. Margaret Mikyung Lee, Legal Ethics in Immigration Matters: Legal Representation and Unauthorized Practice of Law (Sept. 18, 2009).
 I note below the persistent claims regarding the incompetence of a segment of the immigration bar. See Observations & notes 12-13 infra.
 Neither the Ninth Circuit’s decision nor the Government’s Brief to the District Court reveal the particular the immigration relief Vaz initially sought.
 While the focus on multiple complaints might seem to reflect the degree of danger potentially posed by an attorney, the absence of multiple complaints may be misleading. Many immigration clients may fear any contact with government authorities. Others may learn about their attorney’s misconduct only once they have been deported. For other reasons as well immigration clients may not understand either their attorney’s failures or how to lodge a complaint about them. See, Peter L. Markowitz, Barriers to Representation For Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, 78 FORDHAM L. REV. 541, 551 (2009)(focusing on impediments to complaining to local authorities); Andrew R. Arthur, How Bad Is the Immigration Bar? (Nov. 28, 2017)(quoting Benjamin Edwards, Immigrants Need Better Protection—From Their Lawyers (Nov. 26, 2017) (“[p]redatory immigration lawyers sometimes enjoy good reputations in the community because the U.S. deports their victims.”).
 It is not clear how much of EOIR’s delay is attributable to the unique challenges posed to all government offices by the COVID epidemic.
 The District Court’s decision, entered March 26, 2021, is unreported. The docket sheet for the case is available on WESTLAW.
 It is not clear from the Ninth Circuit panel’s recounting of the case that Vaz had sufficient notice that the motion would be converted into a summary judgment motion to allow him to submit an affidavit or conduct discovery.
 Subsection (c) provides that “The EOIR disciplinary counsel, in its discretion, may issue warning letters and admonitions, and may enter into agreements in lieu of discipline, prior to the issuance of a Notice of Intent to Discipline.” However, this provision does not suggest that the Disciplinary Counsel may close a meritorious claim without either some sort of adverse action, a warning letter, admonition, or agreement, or requiring the representative to respond, by issuing a Notice of Intent to Discipline.
 Apparently there is no investigatory stage between a “preliminary inquiry” and the issuance of a Notice of Inquiry. 8 C.F.R. § 1003.105 (“If, upon completion of the preliminary inquiry, the EOIR disciplinary counsel determines that sufficient prima facie evidence exists to warrant charging a practitioner with professional misconduct . . ., the EOIR disciplinary counsel will file with the Board and issue to the practitioner or organization that was the subject of the preliminary inquiry a Notice of Intent to Discipline.”).
 EOIR appears to issue decisions when it finds that some kind of discipline is warranted, and those decisions provide a basis for the attorney to appeal the Attorney Discipline Unit’s decision. Fact Sheet, supra, at 5. But it is not clear whether the Unit memorializes its conclusions in writing or advises complainants when it finds that the allegations are unfounded or do not warrant disciplinary action.
 One need not search long to find assertions regarding the incompetence of a significant segment of the immigration bar. E.g., Benjamin P. Edwards, The Professional Prospectus: A Call for Effective Professional Disclosure, 74 WASH. & LEE L. REV. 1457, 1503-05 (2017); Kirk Semple, In a Study, Judges Express a Bleak View of Lawyers Representing Immigrants, NY Times (Dec. 18, 2011); The Problem With Immigration Lawyers and How to Fix It, Part 1: Immigration Judges, THE ASYLUMIST (Jan, 1, 2012); The Problem With Immigration Lawyers and How to Fix It, Part 2: Immigration Judges, THE ASYLUMIST (Jan, 4, 2012); Andrew R. Arthur, How Bad Is the Immigration Bar? (Nov. 28, 2017). The late Chief Judge of the Second Circuit, Robert A. Katzmann, discusses a concerted ten-year effort to improve the quality of the immigration bar. Robert A. Katzmann, Study Group on Immigrant Representation: The First Decade, 87 FORDHAM L. REV. 485 (2018).
 A 2009 Congressional Research Service report notes the introduction of several bills criminalizing schemes to defraud immigrants with regard to fraudulent representation in immigration matters. Legal Ethics in Immigration Matters, supra note 2, at 14.
 Note, however, there is a credible argument that a robust attorney discipline system might reduce the pressures on the immigration adjudication system. Meritless asylum claims can clog judicial dockets. Andrew R. Arthur, How Bad Is the Immigration Bar? (Nov. 28, 2017)(quoting Benjamin Edwards, Immigrants Need Better Protection—From Their Lawyers (Nov. 26, 2017)). And some attorney errors may be correctable, but only with the expenditure of effort by another lawyer and immigration authorities. Ailsa Chang, NY Facing ‘Crisis’ With Immigration Lawyers, Study Finds, WNYC News (July 1, 2012)(story of Burmese immigrant). This is particularly likely given the obligations of immigration judges and ICE attorneys to ensure that a correct decision is reach. How Bad Is the Immigration Bar?, supra.
 “The unauthorized practice of law by persons who are not attorneys, ineffective assistance by licensed attorneys, or other unethical conduct can cause irreversible harm to aliens seeking immigration benefits or relief. Aliens may forfeit, temporarily or permanently, the benefits they seek, due in part to the prevalence of unethical conduct targeting a population that some regard as particularly vulnerable to such abuses.” Legal Ethics in Immigration Matters, supra note 2, at 1.
 As former Chief Judge Robert A. Katzmann recounted:
I was not in search of the subject of this issue, immigrant representation; the subject found me. . . . I was struck as an appellate judge by a great threat to the fair and effective administration of justice: the too-often inadequate counsel of represented noncitizens. For immigrants, the stakes are enormous– whether they can remain in this country, whether they will be torn from their families. In many cases, I had the sense that if only the immigrant had competent counsel at the very outset of immigration proceedings–long before the case reached the Court of Appeals–the outcome might have been different: the noncitizen might have prevailed.
Robert A. Katzmann, Foreword the Study Group on Immigrant Representation Symposium Innovative Approaches to Immigrant Representation: Exploring New Partnerships, 33 CARDOZO L. REV. 331, 331-32 (2011).
 Indeed, at one point the panel observed that Vaz had presented “no developed argument” that the EOIR’s delay was unreasonable under the TRAC balancing test, and asserted that it “[would] not manufacture arguments for an appellant . . . .” Vaz v. Neal, supra, slip op. at 13 (citing Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)).