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In Cases of Unnecessary Delays with Immigration Cases, Legal Action Against Government is an Option
In the practice of the Immigration and Nationality Law (INA), a frequent frustration for clients and attorneys is the government’s long delays that often accompany adjudication of routine applications for immigration benefits. These delays are terribly unfair to the applicant. Immigration lawyers throughout the nation no doubt have faced the problem of such delays, and are often left with seemingly little recourse against these government inefficiencies.
But there is something that can be done about these delays. There is a procedure that I have found to be most helpful. Immigration attorneys, on behalf of their clients, can sue the United States Citizenship and Immigration Services (USCIS) over unnecessary government delays. In cases that have come to our firm, our track record has been excellent in taking action against the government in the face of these unwarranted delays. If pursued correctly, the success rate is great.
There are a number of different avenues that can be explored to try to expedite these delays and provide clients with the peace of mind of knowing their case is moving along at an appropriate pace, rather than being mired in nonsensical bureaucracy. One way is seeking a Writ of Mandamus against the government, arguing that these delays in the processing and approval process are causing an undue burden on the client. By issuing the Writ, the Court is ordering the Government official to do his/her job.
For example, USCIS may fail to adequately schedule a naturalization interview in a timely matter, or to adjudicate a Green Card application in the appropriate time. Other times the government may fail to comply with Freedom of Information requests, or to adjudicate a Visa petition. These are the most frequent types of government delays, and there may even be others that are less common. In all of these instances, the Mandamus Act can be used against the USCIS to get a client’s case moving along properly.
Another example that does not involve Mandamus allows one to file an action under Section 336(b) of the INA. These cases involve USCIS’ failure to adjudicate an application for naturalization after having interviewed the applicant. If the government does not render a decision within 120 days from the initial interview, an applicant can request a hearing on the application before a U.S. District Court.
This is an important caveat that must be kept in mind in these cases: USCIS adjudications officers frequently ask for additional evidence during the 120-day period; if this happens, the same 120-day deadline still applies. The government may claim that the clock effectively resets itself when this happens, but the courts have disagreed and backed the position that the 120-day clock runs from the date of the initial interview.
If these or other delays should arise, here is a quick rundown of how an attorney can proceed in filing a petition against the USCIS, and what should be expected to happen:
• The case is filed in U.S. District Court, either in New Haven, Bridgeport, or Hartford. It can be filed in any of these three regardless of where the person lives.
• A federal judge is then randomly assigned to the case.
• The government now has 60 days to answer the complaint.
• Many judges will issue an order to show cause, for the government to prove why relief should not be granted.
• The United States Attorney’s office will often ask for a continuance. This is routine, and probably the first such request should be agreed to by the petitioning attorney and his/her client.
As previously indicated, we have met with a great deal of success by filing complaints to compel adjudications. A practitioner filing these types of complaints must not only have a strong command of the INA but also be well-versed in the Federal Rules of Civil Procedure and the Local Rules for the District of Connecticut.
Naturally, none of these steps should be undertaken without careful consideration, and the attorney should be wary of the possibility that the case can be denied. Mandamus and Section 336(b) actions are to compel adjudication, not approval. Clients should be made aware of this possibility as well.
However, in cases where agency inefficiencies are apparently bogging down a client’s case for less-than-essential reasons, taking action against the government could in fact be the next move that an attorney makes.
For more information, please contact Attorney Jason Y Gans.