IMMIGRATION DELAY LAWSUITS

July 24th, 2017 | Jennifer Nimer

Here’s a typical story we hear from our immigration delay clients: You filed your immigration application, you paid all the fees. If USCIS asked for it, you responded to their request for evidence (RFE). You got your interview. That was four years ago.  Now, many frustrated phone calls and InfoPass appointments later, you continue to be told the same thing: security checks. Or perhaps it’s a different story every time: extended review, file is with another agency, name check, file is lost…

What are your options?

In some cases, it may be appropriate to file a lawsuit against the USCIS and other government agencies. There is a law known as the Administrative Procedures Act (5 U.S.C. §500 et seq, the “APA”). Among other things, it says that when an agency (such as USCIS) is given a task to do by Congress, it has to do it, and within a reasonable time. Now, what is considered a “reasonable time” is of course subject to interpretation. Every case is different, and only an experienced attorney has the professional judgment to advise you as to whether or not your wait is reasonable.

Assuming the delay is unreasonable, the APA does give you the right to file a lawsuit. Typically in these lawsuits, you sue the Secretary of the Department of Homeland Security, the USCIS Director, the district director of the field office your case is pending in, (sometimes) the director of the main USCIS Service Center, and quite possibly, the FBI (especially in security check delay situations.) The lawsuit itself is known as a writ of mandamus – a request to the Court to force (mandate) a government agency to do something. In this case, you are asking the Court to tell USCIS to make a decision. 

You don’t have the right to ask for an approval of your application. You only have the right to ask for a decision. That decision may be good or bad. How can you tell? There is no way to know for sure, but one of our experienced attorneys can tell you whether it’s a good idea to file or not based on your immigration history and background.

Mandamus lawsuits are often settled without court involvement because USCIS issues a decision fairly soon after filing of the lawsuit. Many of our clients, for example, came to us after waiting 1.5 – 3 years for their green cards or citizenship. We file the writ of mandamus. The government attorney asks for a brief extension of time. We agree. The government attorney then tells us that USCIS is ready to approve the application. We dismiss (withdraw) the lawsuit. The government doesn’t get dragged into a costly litigation, our client has his green card, and everybody goes home happy.

But this is not always how it works. Sometimes the review of the file brought on by the lawsuit reveals a problem in the alien’s immigration history. If something like that is found, the client may actually have his application or petition denied.  Sadly, your country of origin may also be a relevant factor. People from Muslim countries, for example, may fall victim to the CARRP program – the “Controlled Application Review and Resolution Program.” This is a program in which USCIS secretly mandates discriminatory delay and denial of citizenship and immigration benefits to aspiring Americans simply due to their country of origin. If we believe that you have been subjected to CARRP, we can also challenge that in a lawsuit.

 

If you would like us to help you with your immigration application delay, here are some things you should know: 

  1. We have had highly successful results with mandamus lawsuits.  We have filed dozens of these types of suits and have been successful in obtaining the immigration benefit sought in every single case so far.  We have filed suits for various types of delays including applications for green cards, citizenship, immigrant visas for spouses and/or children, and even passport issuance delays.  
  2. Do not be afraid of “suing the government.” Think of suing as “demanding your rights.”  You will not be targeted or punished by the government for filing a lawsuit.
  3. Talk to your lawyer. Do not hide anything. Everything you tell your lawyer is protected by attorney-client privilege and cannot be shared by the attorney to anyone else. If you do not tell your lawyer the whole story, he will not be able to help you. 
  4. Filing a lawsuit will NOT cause your application to be denied.  IF you have a criminal history, lied on your application, or there is some other issue that would justify a denial, filing the lawsuit MAY speed up a denial. But in and of itself, the actual filing of the suit will not CAUSE a denial.  CIS still would have to provide grounds for a denial just as it would in any other immigration application decision.
  5. If you are outside the normal processing time but it hasn’t really been that long, start creating a paper trail. Every time you contact CIS to follow up, make sure you get something in writing. Keep copies of all letters you send, and send them by certified mail, return receipt requested. If enough time passes, enlist the help of your local US Congressman, or the CIS Ombudsman’s Office. When you make an InfoPass appointment, keep another copy of the appointment sheet. If the time comes that you do need to file a writ of mandamus, you will want to show “exhaustion of administrative remedies.” This means you have to show the judge that you tried to resolve this issue in many different ways before you came to court.
  6. Do not try to file a writ of mandamus by yourself. 
  7. Mandamus is not necessarily a “quick fix” so do not expect quick results.  It can take several months to get results in your case and you will need to be patient.

If you would like to request our help with your immigration application delay, please complete this questionnaire and one of our experienced attorneys will review your information and contact you.  

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